COVID-19 and military justice (South Africa)

In the aftermath of the High Court's ruling in the Collins Khosa lockdown brutality case in South Africa, one noted analyst has this comment on the need for a special code of conduct when defence force personnel aid the police in law enforcement:

“I think the additional problem that can creep in here is soldiers are not taught and trained about how to proceed with an arrest in a legally correct manner. No quick course will change that while lengthy training is a pointless exercise for troops not intended to be police officers.

“The solution is to have a police officer with every section and make him responsible for handling infractions, with soldiers there for protection and muscle when required, acting on the request, directive and instruction (not command) of the police officer.”

How practical is this solution?

Prof. Cathleen Powell (Cape Town) has this insightful essay on The Conversation. Excerpt:

The rule of law sets requirements both for the content of law and for the process of its application. It has eight specific aspects, on which most legal theorists agree. 

A society complies with the rule of law if
(1) there are generally applicable rules, and
(2) the rules are publicised,
(3) understandable, and
(4) not retroactive.
(5) The rules do not contradict each other,
(6) they are relatively consistent over time,
(7) compliance with them is not physically impossible, and
(8) the administration of law reflects the rules as announced. This means that the government is bound to give effect to the rules that have been publicised. 

The problem with the lockdown is not just that it violates the eighth requirement, although this particular violation is the most obvious in cases of government brutality. As the Khosa case shows, the soldiers acted beyond the powers conferred on them by law, and committed the crimes of assault and homicide. (This evidence, put before the court by eye witnesses, was not contradicted by the police or the military in the case.) 

But most of the other requirements of the rule of law are not being met, either. Many new lockdown regulations and directives have been promulgated since April, from several different government departments, and are published online in government gazettes. They have been appearing at such a rapid rate that even lawyers with expertise in this area are battling to keep track of the details.