Lawfare under lockdown: Challenges to South Africa’s Covid Regulations, March to August 2020

Abstract

Over the past 25 years, South Africa’s political order has been shaped by an official commitment to constitutionalism, and a popular faith in the ability of the judiciary to hold the executive and the legislature to account. This has resulted in litigation requiring the state to provide anti-retroviral treatment to HIV-positive people across the country, to design and implement an Emergency Housing Policy, and to implement the neglected Upgrading of Informal Settlements Policy. It has also led courts to order the dismissal of senior members of the government bureaucracy, and to require that political party funding be publicly disclosed. In all of these cases – and many others – the courts have been asked to mediate between citizens, communities, and opposition parties, and the state itself. This process has sometimes been described as ‘lawfare’ – that is, as the pursuit of traditionally political ends through legal and judicial means. When invoked in the scholarly literature, the concept of ‘lawfare’ directs our attention towards the institutional relationship between the judiciary and the more explicitly political branches of the state. It challenges assumptions of a strict separation of powers by emphasising the inevitably political effects of judicial decision-making – and by showing how these effects can be courted by litigants, who seek to use legal arguments in the courtroom to achieve political and social ends outside of it.