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GILLIAN BENSON: I will not apologise for criticising lockdown legislation

OPINION

A couple of weeks ago I openly criticised our government on my personal Facebook page. I have since apologised for that. In the instant of posting that comment I was hugely frustrated and emotionally distraught and like many people do, I reacted. I vented on Facebook without first thinking it through. Who hasn’t said something they regret in a moment of anger? Furthermore, we live in a thriving democracy where criticism of our leaders, political or otherwise, should not be discouraged.

A very well-known journalist, Karyn Maughan, approached me for comment on the 16th May which I subsequently provided on 17th May. That article was published in the Business Day yesterday on the 17th May. In this article Karyn refers to me as an ‘acting judge’ and that I have agreed to step down from the bench.

Firstly, I am an advocate. My last stint as an acting judge was in February 2020. At no stage did I hear any matter for the State, but even if I had, I would have exercised my judicial impartiality as I have done with all matters that I have dealt with. Judicial officers are human beings and are entitled to their opinion, however strong they may be, but this does not mean that having an opinion makes one unable to adjudicate a matter judiciously. You may recall that even our Chief Justice of South Africa, Mogoeng Mogeong, expressed his strong belief in his religion and this certainly did not disqualify him from sitting as head of our apex court. No one can fairly say that he has not been unable to carry out his judicial functions as Chief Justice.

Be that as it may, the current lockdown has caused great angst for individuals such as myself, in our personal lives and beyond. Whilst professionally I am unable to earn a proper income, the regulations have had a far greater bearing on other aspects of my personal life as well as on other South Africans

In addition to the stress which the lockdown has caused many citizens, there have been senseless regulations drafted, which continue to affect parents like me who are in the midst of divorce proceedings. We require permits to travel with children between parents but can take them to busy malls without permits, for instance. The latest amendment provides that we require these permits, but magistrates refuse to issue them on a daily basis. This has affected not only me, but many of my clients. This is but one of many examples of our regulations which are illogical, irrational and inexplicable, but gazetted with seemingly no foresight of the effect that they might have on the general populace.

I, like many other South Africans, started lockdown on a positive note, using much of my savings and my newly freed up time to assist in feeding the poor. I was deeply saddened when I had to put a stop to that, as I discovered that this was declared illegal in the absence of a permit. To outlaw the feeding of the poor for want of a permit to do so, is an outrage.

Many people, far more prominent than I, have expressed their own frustrations and displeasure with these regulations. Former Minister Trevor Manuel has sharply criticized government regulations and said that the Disaster Management Act does not mean that accountability over government is suspended. He has called many of the regulations “irrational” and “nonsensical”, stating that “We must not be tolerant of this type of behaviour and we need to demand checks and balances. We need to go back to rationality”. Tito Mboweni also does not support many of the regulations, albeit that he is bound by the collective.

We have also been advised that renowned scientists like Dr Linda Gray are also critical of the regulations and the indeterminate period of lockdown.

Furthermore, Judge Fabricius ruled last week in the Khosa case that the regulations have led to a “communality of failure”. He stated “there is no point” to some of the regulations. Thus, like me and every citizen in this country at present, even the judiciary have been critical of the regulations, and will continue to be no doubt as the litigation against the government continues.

Many high profile and excellent senior counsel, who have similarly had acting stints, have expressed their disagreement with many of the regulations and the affect that they have had on our country. Cassim SC stated his own views publicly in his now well-known letter to our leaders.

We cannot buy open toe shoes, but we can buy a new canary. If that does not justify some form of criticism, from me and every other citizen in our private capacities, then I simply do not know what has become of our democracy and our entrenched right to freedom of speech, amongst other rights.

I have followed Karyn Maughan’s own articles and posts about the regulations for several weeks now, and was amused at her reference to the “wheels having come off Cyril’s bus”. She has publicly stated that “we are being fed a false rhetoric” and “shame that those in authority have to be ordered to do the right thing”. She stated further that it was a “great acknowledgment by the President about the irrationality of certain regulations”. Would this criticism render her unable in the future to report on the government in an unbiased manner? Surely not.

I may be an advocate. I may have acted previously as a judge. But I remain a human being first and foremost. And I remain entitled to criticize any legislative measures implemented which I do not agree with. To bully and vilify me for expressing my opinion (as Karyn did), is rather hypocritical. There are millions of South Africans expressing their displeasure right now at these regulations.

I will not apologise for expressing my own view and will continue to do so. The choice of adjectives and nouns that I chose may have been unfortunate, but when an irrational regulation with no basis whatsoever and clearly with no thought as to the best interests of parents and children, hinders my contact with my own child, I will remain upset and deeply so. Criticism of choice of language should not be used as a tool to stifle dissent.

As even our President has said:

“Some of the actions we have taken have been unclear, some have been contradictory and some have been poorly explained and some have evoked a lot of anger and opposition in many of you.”

I am but one of the many.

Yours sincerely
Adv G Benson

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