At the heart of its ruling was acceptance of the propositions that:-
a) smoking was not an “ essential activity”; AND
b) it was not wrong to think, imagine or suppose that imposing the ban was a good measure in the fight against Coronavirus-19.
The Court was right on both of these counts.
It was right in recognising that these two propositions were there to be weighed up in the scales of justice and in making these findings about them.
The question that arises … and it is a very big question … is whether or not the Court saw and appreciated what was ALSO in the scales …
on the other side …
in competition with these propositions??
In figurative speech this was a case of virus versus virus.
Anomie is the noun used by social scientists and Criminologists to describe a condition of “social norm disorder … general culture of deviance … lawlessness”.
Did the Judges understand that South Africa has long since been chronically infected with this, across the board, vertically and horizontally?
For the last 20 or so years Carte Blanche has valiantly confirmed this to us week in, week out.
It seems impossible to conclude that the Judges were not aware of this.
In terms thereof (Anomie) it was always the case that:-
a) people were going to continue to smoke;
b) sourcing cigarettes from organised crime;
c) in defiance of government, authority and the law;
d) with government being divested of Rand billions in tax revenue to the benefit of organised crime;
e) with millions of our people, living in wretched poverty, thereby divested of being able to receive assistance from our cash strapped government;
f) thereby organically breaching a Constitutionally imposed duty to redress the socio-economic injustices that are an apartheid legacy.
Jurisprudentially this was/is not “rocket science”. It is 2nd Year Law.
Criminology is blindingly clear on this. It draws on the lessons learned as a consequence of America’s period of Prohibition. As a direct consequence of America banning alcohol consumption it became inflicted with the likes of Al Capone and organised crime that has become irrevocably embedded.
So, it is now universally accepted that a government does not make laws that its citizens are going to disrespect, resist and breach. Making such laws guarantees otherwise law-abiding citizens disrespecting government, authority, and the law.
That is exactly what has happened and is happening as confirmed by investigative reports and non other than the Minister of Police, Bheki Cele.
Anomie, that is a pathological affliction of this country from the days of apartheid is being given a huge boost … no question whatsoever!!
Conclusion
In terms of an objective test, it appears obvious that Covid-19 was used as an opportunity to ban smoking …
even though no country other than Bhutan has ever done this because of the dictates of Criminology forged in the fires of Prohibition.
This can be seen as an example of Crusader Syndrome.
The Judges have come out in support of this, even though, jurisprudentially crusading and its twin brother, vigilantism, are accepted as inherently dangerous to law, justice and the public interest.
That a smoking ban is, at best, marginally effective against Covid-19 scientifically, has been submerged by crusade enthusiasm.
In simple terms Covid-19 remains largely unaffected while Anomie achieves a Huge Boost.
That Superior Court Judges appear to be comfortable with this, is worrisome indeed.
With respect, In effect this amounts to promoting a functionally corrupt State.
Again with respect, at best/worst the Court has failed to understand that the "road to Hell is indeed paved with good intentions".
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Recommendation.
This judgement should be appealed as an Appeal Court will not be able to dispute one syllable of the statements I have made as regards Anomie.
