In a country that is still tending to the wounds of apartheid, a system of government that was characterized by racially-based oppressive regulation of every detail of people's lives, (1) the regulatory imposition of sweeping restrictions on all aspects of South African society in response to the COVID-19 pandemic is a painful experience. The state of disaster issued on March 15, 2020, (2) the national lockdown from March 27, 2020, (3) and the accompanying all-embracing legal measures that followed, (4) are the most significant restrictions of the freedoms that South Africans obtained only twenty-five years ago upon democratization. Furthermore, as one of the world's most unequal societies, (5) the response to--and ability to respond to--the imposed restrictions is also highly unequal. Compare, for example, the context within which a typical suburban family faces strict stay-at-home lockdown conditions with that of a person living in an informal settlement. The former faces lockdown in a leafy suburb with a nuclear family in a stand-alone house, shopping online, and having groceries delivered to the front door. The experience is vastly different for a person living in one of South Africa's peri-urban informal settlements (6) in a single-room, informal structure along with multiple generations, and having access to public services (sanitation, water) only in communal form and food only from informal traders.
The pandemic hit South Africa relatively late compared to countries in the northern hemisphere. (7) The first case was officially confirmed only in early March 2020. (8) By September 12, 2020, about four million tests had been conducted, 648,214 positive cases had been identified, and 15,427 individuals had died of COVID-19 related deaths, (9) all in a population of about sixty million. (10) on this same date, the recovery rate stood at 89%, (11) and South Africa had the eighth-most confirmed cases worldwide. (12) The spread of the virus peaked (at least during the first wave) in mid-July, when new cases rose to just short of 13,000 daily. (13) New cases subsequently declined to 2,000 daily in early September. (14)
Against this backdrop, the regulatory response to the COVID-19 pandemic in South Africa is noteworthy for at least two reasons. First, the relative calm with which South Africans initially accepted the severe restrictions on their daily lives and the changes in attitude over time says something about the authority enjoyed by the government in this crisis based on a culture of justification. Second, the ongoing (almost daily) regulatory adjustments speak to the challenges of regulating in a highly complex environment, especially challenges of regulatory coordination.
I. Culture of Justification
Early on in South Africa's transition to democracy, leading local administrative law scholar, Etienne Mureinik, typified the constitutional transition as one from a culture of authority to a culture of justification. (15) Mureinik was exploring the purpose of the new Constitution generally and the expansive Bill of Rights it contained more specifically....