On occasion, the highest court in the land can deliver a judgment that is truly baffling to simple-minded folk.

Last week, the Constitutional Court upheld the appeal of New Nation and others against a judgment of the Western Cape High Court on the Right of individuals to stand as independent in national and provincial elections. The court found that, “insofar as the Electoral Act makes it impossible for candidates to stand for political office without being members of political parties, it is unconstitutional”.

Should a citizen, for example Herman Mashaba, decide to run for election to the National Assembly he would previously have been obliged to register a political party, which could perhaps have been called the Herman Mashaba Is Great Party. Registration is easy and cheap, and it could be made even easier and cheaper.

But the learnt judges reasoned: “If it is an individual’s fundamental right to be free to associate with whomsoever she or he wishes, surely it must equally be one’s fundamental right to be free not to associate with anybody whatsoever.” Membership of a political party “comes with impediments that may be unacceptable … It may be too trammelling to those who are averse to control.”

A party “may be overly restrictive to the free-spirited … censoring to those who are loath to be straitjacketed by predetermined party positions. In a sense it just may at times detract from the element of self; the idea of a free self; one’s idea of freedom.”

The court determined boldly on this peculiar basis that the entire electoral system will have to be remade. It insisted that the new electoral system “must be in place well ahead of the next elections”.

It may be that the judges are quietly, but wrongly, confident that an oven-ready recipe is at hand, perhaps in the form of the neglected 2003 majority report of Frederik Van Zyl Slabbert’s commission on electoral reform.

Slabbert proposed a “mixed system” in which 300 members of the National Assembly would be chosen from 69 multimember constituencies. The remaining 100 “top-up” MPs would be allocated to restore proportionality “in general” between votes cast and MPs elected, as the constitution requires.

Parliament rejected this proposal and agreed instead with the minority report’s judgment that a closed-list proportional system, without constituencies, should be retained.

The majority proposal was in some respects an elegant solution to the challenge of combining some constituency accountability with broad proportionality. It does very little, however, to address the challenges faced by the “free-spirited” independents that our highest court champions.

What kind of candidates are unwilling to subject themselves to the minimal disciplines of party politics, such as drawing up a manifesto and acceding to internal accountability mechanisms in a party they have themselves created?

The overwhelming majority of such candidates will be eccentrics or egomaniacs. Many or perhaps most of them will base their campaigns on identity politics, ethnic division or xenophobia.

Even candidates depending on such triggers to rally support will need campaign organisation, and this implies powerful donors. This form of constituency politics encourages direct relationships between businesses and candidates. There is ample cautionary evidence that MPs are happy to bring bulging suitcases full of cash for their voters ahead of elections.

The electoral commission already struggles with our relatively simple electoral system. The proposed time frame of 24 months implies that the required constituencies can be summoned out of thin air, which reveals alarming unfamiliarity with the capacity of the current demarcation board.

The judges evidently failed to consult any of the voluminous writings about the world on how politicised boundary demarcation encourages violence, ethnic competition, gerrymandering, voter busing and other pathologies.

If it ain’t broke, why are the judges telling us to fix it?

• Butler teaches public policy at the University of Cape Town.

The courts and the government have been at loggerheads this week. Does this mean SA is heading for a constitutional crisis?

There was a successful court challenge to lockdown regulations that had required registration of essential businesses with the Companies and Intellectual Property Commission. Then the North Gauteng High Court issued a court order prohibiting the government from dragooning some of those who test positive for Covid-19 into state quarantine facilities.

And co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma narrowly escaped contempt of court proceedings in a complex tobacco ban challenge. Finally, in a ruling of wider significance, the Pretoria high court found that numerous regulations declared under the state of disaster were “unconstitutional and invalid”.

Were the government’s sloppy submissions merely the result of a “lackadaisical approach to litigation by the state”, as one legal commentator has observed? Or do they demonstrate a growing indifference or even hostility towards judicial scrutiny?

Our judges do not bask in popular adulation. When asked in 2018 by Afrobarometer, “How much do you trust courts of law?”, 45% of respondents replied “not at all” or “just a little”. Fewer than one in three SA citizens trust judges “a lot”. Farcical presidential commissions of inquiry fronted by judges, and a failure to prosecute blatant criminals from the Jacob Zuma era, have helped undermine the reputation of the judiciary and the criminal justice system as a whole.

In the past, critics of the courts within the governing ANC have been counterbalanced by powerful proponents of constitutionalism. As Ronald Suresh Roberts illuminatingly explained more than a decade ago, this was essentially a pragmatic balance: Thabo Mbeki and his allies saw the law as a backbone of apartheid, but they also insisted it was an essential instrument of societal transformation. Moreover, constitutional government was a precondition for participation in a broadly benign international financial and regulatory order.

Covid-19 may have changed everything. The lockdown, in the president’s ill-chosen words, will “destroy the economy”. Tax revenues have collapsed, and unemployment looks set to rise, perhaps by millions. In a devastating and tragic miscalculation that SA’s government can do little to influence, the wealthy countries of the north have comprehensively failed to provide necessary support for the developing south in this time of exceptional crisis.

Bretton Woods institutions’ funding parameters are entirely inadequate to the magnitude of the challenge. As the economist Dani Rodrik recently observed, the International Monetary Fund (IMF) rapid financing instrument offers loans equivalent to less than 1% of any country’s GDP; at least 10 times as much funding is needed to make a significant impact.

Given conflict between the US and China and the disarray among global political leaders and in international institutions, vulnerable countries such as SA are being thrown back on their own resources. This has handed the agenda to the protagonists of simplistic state-driven modes of “development”.

In a leaked draft presentation, the ANC’s economic transformation committee has proposed a range of sweeping and fantastical interventions. Insofar as can be ascertained, the money to take them forward will come from some modality of Reserve Bank “quantitative easing”, from pension funds and ultimately from other domestic savings.

The ANC’s menu of proposed actions will quickly run up against the fiduciary duties imposed on pension fund trustees and the requirement that public institutions such as the Reserve Bank provide reasons for their actions. Major private sector actors, including banks, institutional investors and asset managers, will regretfully resort to the law to challenge ill-considered and potentially disastrous government actions.

This is where our real constitutional crisis beckons. Such a crisis will not be precipitated unless and until there is a wilful choice on the part of the executive to violate the law and ignore judicial instructions to that effect. Who would bet, right now, that they will not do so?

• Butler teaches public policy at the University of Cape Town.

The good citizens of the suburbs have struggled in recent weeks to understand the government’s Covid-19 lockdown regulations. Consternation and outrage have been induced by bans on the sale of cigarettes and alcohol, a curfew, a narrow exercise window, disruptions to informal trading and the production of a curious catalogue of government-approved winterwear fashions.

To this catalogue of controversies we now have to add this week’s decision to reopen places of worship.

Such measures have often been interpreted as irrational or even vindictive impositions, intended to harass and punish particular groups of citizens, to reward special interests, to secure illegal campaign donations, or to advance the secret agendas of governing party factions.

Some observers have even discerned a rise of the securocrats, a move towards communist rule, or simply a descent into chaos, as ANC power brokers fight for ascendency in the National Coronavirus Command Council.

Internal ANC politics has certainly been messy. President Cyril Ramaphosa has waved his good news wand in the evenings, leaving his ministers to fill in the unpalatable details the next morning.

What, however, if government’s actions in fact reflect an underlying and coherent political strategy? According to a very old “theory of the median voter”, a political party needs to hang about somewhere near the centre of politics if it wants to win.

At one end of our political spectrum lies a grouping we can describe as the sinners, who have been government’s most vehement lockdown critics. They smoke, or drink, or like to take a late morning jog with their labradoodle. Some of them are even cyclists.

The sinners have been noisy antagonists. But there are not very many of them, and they are concentrated in the Western Cape and Gauteng.

Johannesburg’s sinners, on the whole, do not obey the law anyway. (Just try getting them to pay their traffic fines or e-tolls.) Their view is that the government should pretend to have laws and they will pretend to obey them.

According to the World Health Organisation, fewer than one in three SA adults is a drinker, although those who do drink are quite likely to be bingers. A quarter of alcohol was already illicit in pre-coronavirus SA, and unlicensed outlets outnumber licensed by two to one. The bingers have therefore mostly found underground sources.

As for cigarettes, it is surely not persuasive to claim, as the sinners have done, that cigarette bans have been both cruel and easily circumvented.

White, middle-class sinners have largely taken themselves out of the electoral equation. By voting remorselessly along tribal or racial lines, they have reduced the incentive for the government to pay heed to their grievances. Informal traders, for their part, have been scarcely courted by opposition parties, and many of them are unable to vote.

On the other side of the political continuum lie the vastly more numerous godly communities. Four out of every five SA citizens describe themselves as Christian. On top of that there are many other conservative faiths and traditionalists.

The 10-million Zionist, Apostolic, and Pentecostal church members openly live under strong injunctions to abhor promiscuity, alcohol and tobacco, but it’s not just the hardcore believers who are likely to support bans. According to an Afrobarometer survey in 2018, 60% of citizens believe women who receive child support grants spend too much money on alcohol. Worse still, more people agree than disagree that pensioners are alcohol spendthrifts.

They believe trade and industry minister Ebrahim Patel’s sense of good fashion is a little racy. Many of them may indulge in the belief of a third of SA citizens that military rule is not such a bad thing.

What this all means is that SA has a vast number of God-fearing and deeply conservative electors, and a relatively small coterie of whingeing urban sinners. The latter don’t vote for the ANC anyway, and are not too aggrieved by the bans because the regulations can be circumvented.

When Ramaphosa said this week that “the faith community is an integral part of SA life and has made a great contribution in the fight against the coronavirus”, it should be added that its members are also the holy grail for ANC electoral strategists.

This country’s conservative population has not so far provided fertile ground for religious parties, but nor has it acceded authority to the liberation movement. This is where the real competition for votes in future elections probably lies.

• Butler teaches public policy at the University of Cape Town.

Politically speaking, what comes next? Credible analysis of “post-Covid politics” requires attention to three aspects of the crisis.

The first is alertness to the importance of time. Our sense of the passage of time has been profoundly disrupted by the pandemic. It is hard to believe that our first confirmed case of Covid-19 was recorded as recently as March 5.

Under stress, our instinct has been to track shifts in often meaningless data, on a day-to-day or even hour-by-hour basis. Our sentiments about government, or particular politicians, swing alarmingly from positive to negative in a matter of days.

Our vehement condemnation of slow lockdown lifting will be followed within days by denunciation of government for acting too quickly.

Close to the start of our Covid-19 experience we do not know ourselves. Restaurants that Americans longed to visit in April have reopened with empty tables. Parents of schoolchildren reluctantly withdrawn from SA schools just weeks ago, now clamour to prevent their return.

We do know, at least intellectually, that prior pandemics and economic dislocations have changed how people think, the concepts they have used to capture the dynamics of their societies, and the ways they have framed what is morally right. But, like them, we cannot apply this understanding to our own situation.

The first peak of infections — one that will itself change how we think — is still a couple of months away. Who can conceive how our world will seem to us in two years’ time? Or, in the absence of a vaccine, even further ahead?

Second, the most persuasive political analysis has tempered awareness that we might see radical change with the constraints and opportunities imposed by “normal politics” and the socioeconomic realities of our society.

The Financial Times, whose grasp of cold realities is often overestimated, fired the starting pistol on global windbaggery about political transformation in an editorial on April 3. Warning that the virus, and the economic lockdowns needed to combat it, “shine a glaring light on existing inequalities”, the FT noted that “we are not really all in this together … the economic lockdowns are imposing the greatest cost on those already worst off.”

On the basis of this belated recognition, the FT leapt to the conclusion that “governments will have to accept a more active role in the economy. Redistribution will again be on the agenda [and] policies until recently considered eccentric, such as basic income and wealth taxes, will have to be in the mix.”

Maybe so. But “normal politics”, and resource constraints, will continue to sharply limit the possibility of a policy transformation in SA.

Schools and clinics need to function, and such institutions need to be painstakingly built. Even technophiles must accept that we do not have a country poised on the brink of rapid technological transformation: a recent paper from Afrobarometer, drawing on a 2018 survey, notes that a majority of SA households do not own a computer. We will not become another place simply because we wish to do so.

A third consideration is one of framing: most of us remain trapped in a public health framing of Covid-19, because that is how the crisis was first introduced to us. Yet relatively few of us will experience the virus itself as devastating.

What we will experience instead is an economic catastrophe: a loss of livelihoods and the collapse of businesses in the formal and informal sectors.

Over the months and years ahead, as Covid-19 becomes a background condition in our lives, fiscal crisis, business failure and higher unemployment will provide the lenses through which we view our political options.

Rose-tinted speculation notwithstanding, the fiscal bill will still have to be paid. These economic constraints will define our post-Covid-19 politics.

• Butler teaches public policy at the University of Cape Town