Legislators are like tik addicts. They’re convinced that after just one more hit they’ll find Nirvana.
But the law, especially when cack-handedly drafted, is an imperfect instrument for changing society. It’s like using a panga for plastic surgery: the results are likely to please neither practitioner nor patient.
Filled as it is with a righteous zeal to correct the wrongs of the past, the African National Congress has since 1994 unleashed a slew of social engineering legislation. Unfortunately, some of it has been so poorly drafted that it has fallen at the first hurdle when challenged in the courts.
And some laws, despite the ANC’s admirable intentions, have been so poorly conceived that they have had perverse consequences, outcomes predicted by many commentators but ignored by a governing alliance. After all, this is a government less driven by delivering modest, incremental improvements than it is by a grand, utopian vision engendered by Marxist ideological fervour.
For example, the various bits of legislation intended to fortify the often shamefully flouted rights of black labour tenants on white farms achieved the exact opposite of what was planned. The idea was to stabilise an agricultural sector where worker and family live at the place of employment and had the right to supplement their mostly low wages with some subsistence farming on the side.
Instead, landowners alert to the land restitution intentions lurking unstated but obvious in the legislation picked up the pace of mechanisation, retrenching hundreds of thousands of workers, and then evicting them en famille from the farms. Alternatively, they simply offered the remaining workers financial inducements to relocate – an urban erf with a house; a cash settlement – that fuelled the sugar-coated movement of vast numbers of people to the cities.
While some farmers do still have staff living on their farms, the government’s recently stated intention to give these farmworkers as much as 50% of such farms, the exact share dependent on the worker’s length of service, will put a stop to worker tenancies. It’s a bizarre bit of populism, akin, if government is to be conceptually consistent, to giving long-serving domestic workers in the cities a proportionate share of their employer’s suburban homes. To figure out that such legislation will trigger retrenchments and unemployment doesn’t take a brain surgeon.
Which is fortunate, since brain surgeons are about to become an even rarer species in South Africa than they are already. With last month’s promulgation of those sections of the National Health Act that allows the state to decide where medical professionals establish their practice, we can expect another negative result of the law of unintended consequences – the accelerated emigration of top-flight medical experts.
What would you do – as a lawyer, or an accountant, or an engineer – if the government suddenly abrogated to itself the right to decide where you could open a practice, or indeed whether you should be allowed to continue operating where you have been sited forever? Because that’s exactly what the NHA sections just signed into law by President Jacob Zuma – although drafted as far back as 2003 – does to the medical profession.
Whether a general practitioner, a specialist, a physiotherapist, an occupational therapist, or a dietician, the constitutional right to work will be subject to “certificate of need”, issued by the state in accordance with the Act’s objective of ensuring “an equitable distribution and rationalisation … to correct inequities based on racial, gender, economic and geographic factors”. No matter how laudable this objective, the reality is that this ambitious experiment in social engineering will be carried out by an anonymous collection of semi-literate, incompetent and corruptible bureaucrats – the very same ones who can’t ensure that government clinics pay their staff on time and can’t keep hospital dispensaries stocked with staple drugs.
A doctor friend, who always shunned private practice for health department work before joining a not-for-profit, made the point to me that many doctors would by preference work in the public service, if it they could have satisfying careers in well-run, effective medical institutions. “The reality is unfortunately that the state treats doctors like crap,” he says. “I’ve travelled to isolated clinics where they don’t even provide tea-making ingredients, so one has to remember to take one’s own. And then it’s in any case likely that the bloody kettle will be broken.”
The example cited is on the face of it petty, but it is emblematic of a greater malaise. Instead of taking a proctologist’s approach to the problem, if only Health Minister Dr Aaron Motsoaledi could remedy public sector health, he wouldn’t have to worry about the personal, rational decisions of private practitioners.
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