Professor of Laws
Department of Public,
Constitutional and International Law,
College of Law, University of South Africa
Mr Nikitta Nkosi,
College of Law,
University of South Africa
On 5 March 2020, the South African National Institute for Communicable Diseases, through the Minister of Health, Dr Zweli Mkhize, reported the first Covid-19 case in the Republic of South Africa. Since then, the country has confirmed upwards of 9000 positive cases with more than 3500 recovered patients. At the time of writing, the South African Covid-19 death toll stood at 186. Compared to some of the worst-hit nations, such as the United States of America which has recorded more than a million active cases and more than 75 000 deaths, it is safe to say that South Africa has done very well in its tackling of the virus so far. When announcing a 21-day nationwide lockdown on 15 March 2020, President Cyril Ramaphosa noted that the country was facing a grave emergency, but would be able to conquer if South Africans acted together and decisively. The initial 21-day lockdown was extended by two more weeks. Essentially the country went into a strict Lockdown for 35 days. At the time of writing this piece, South Africa remained in Lockdown, albeit in a slightly relaxed form. South Africa now adopts a system where government-imposed restrictions are classified into levels. The country currently sits on ‘Level 4’ of its Lockdown, where the severity of the situation decreases with decreasing level number from 5 to 1. There is no precise indication from the Government regarding when the Lockdown will likely end.
The constitutional and legal framework regulating responses in case of emergencies
On 15 March 2020, President Ramaphosa announced a national state of disaster in order to tackle the pandemic. The Minister for Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, empowered by section 27 of the Disaster Management Act (the Act), had already declared a National State of Disaster in Government Gazette 43096. The President’s task was simply to announce it and detail the response that his cabinet would roll out. Section 26 of the Act stipulates that the Executive is primarily responsible for coordinating the government’s response. Cabinet Ministers have at their disposal existing legislation, guided by the Constitution to respond to such a disaster. The Minister for Cooperative Governance, however, has the power to make regulations under the Act. These are the same regulations that enabled a clampdown on cross-provincial travel, limitation of trading hours, restrictions of the sale of certain items - such as alcohol and tobacco products.
The South African Constitution does not make mention of a ‘State of Disaster’, however, the President made his announcement in terms of Minister Dlamini-Zuma’s earlier declaration. It is noteworthy, however, that section 37 of the South African Constitution only makes reference to a state of emergency, which can be declared, inter alia, when ‘the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency’. The provision further stipulates that the declaration of the state of emergency must be necessary to restore peace and order. It limits the duration to 21 days, which can only be extended by the National Assembly. Although a state of emergency generally suspends rights, section 37 tabulates specific non-derogable rights, even in the time of such a declaration. These include Equality (section 9), human dignity (section 10), life (section 11), freedom and security of person (section 12), freedom from slavery, servitude and forced labour (section 13), rights of children (section 28), and rights of arrested, detained and accused persons (section 35). Aggrieved individuals can still approach a court for a remedy even during a state of emergency.
But the President’s announcement, which enabled the Lockdown, was not a state of emergency. Rather it was a declaration of a ‘state of disaster’, declared by the Minister in terms of the Act. It is a unique creature, akin to but slightly less restrictive than a state of emergency. It is also designed to serve the same purpose, to protect and restore the integrity of the Republic and the life of the nation where it is threatened by a natural disaster or other public emergency.
The Act defines a disaster as ‘a progressive or sudden, widespread or localised, natural or human-caused occurrence which causes or threatens to cause death, injury, or disease…’. Although the declaration of a state of emergency is the exclusive preserve of the President (in terms of the State of Emergency Act of 1997), the actual administration of the Act becomes the responsibility of a member of the cabinet. In the South African context, this role falls under the purview of the Department of Cooperative Governance. Although not a legal prescript, the minister becomes a somewhat prime minister whilst the state of disaster subsists.
The Act also enjoins the President to establish an Inter-Governmental Committee on Disaster Management, whose main task is to give effect to the principles of a co-operative government in terms of chapter 3 of the Constitution. The Act further provides that the Committee must be chaired by the minister responsible for the cooperative governance portfolio (section 4(2)). The membership of this Committee includes other cabinet members involved in disaster management, and provincial Member of the Executive Council involved in disaster management (selected by the Premier of each province), The work of the Committee is supported by an advisory forum set up under the same Act.
Can rights be limited in a state of disaster?
Naturally, states of calamity tend to redirect the focus of all commentators to the rights of individuals. As expected, the civil and political rights of everyone in South Africa during the recent state of disaster, or Lockdown was subjected to much media attention. Numerous reports appeared in South African media depicting people getting arrested for ‘mocking’ the government or ‘spreading misinformation’ regarding the virus. These arrests were prevalent mostly during the early stages of the Lockdown when people still wanted to test the limits of government restrictions. On 5 April 2020, two young men were arrested in Pretoria after they circulated a video of themselves cruising around in violation of the Lockdown regulations. The South African Police Service released a statement saying the suspects were ‘mocking government regulations…’ on social media. In another incident in Cape Town, a man was arrested for publishing on Facebook that the coronavirus testing kits were contaminated. Several somewhat comical incidents followed later, including a man who tried to smuggle his girlfriend across provincial lines in the boot of his car; several homebrewers who were arrested for illegal brewing and selling of alcohol; several fake police and army personnel; several cross-provincial travellers with fake travel permits, including one who told police at a roadblock that he was en route to a meeting with the mayor of Johannesburg, not knowing that the same mayor was the one asking him questions at that roadblock. This was to be expected in a free society like South Africa, where the ordinary individual battles to grasp the limits of that freedom.
The deployment of the army also triggered a reactionary approach from opposition parties and other commentators who are opposed to the involvement of the military to enforce lockdown regulations. Within hours of hitting the ground, the army was accused of abusing authority and violating the rights of South Africans. In some videos, those suspected of violating the Lockdown rules were frogmarched, forced to roll on the ground, to do leopard crawls, to do push-ups and other torturous physical punishments. Perhaps the question that begs an answer here is why was there a push back from South Africans when they were ordered to stay at home for their own health and safety? Why did they feel like the Government was going too far?
Understanding the limitation of rights in the South African context
A number of reasons could be advanced (from poverty to the continued impact of apartheid spatial planning, especially in the urban sector), but what often escapes the analysis of pro-poor commentators is the constitutional imperative to limit individual rights. According to section 36 of the Constitution fundamental rights are not absolute and can be limited. It also lays down the manner in which such limitation must be made. The section first requires that there must be a law of general application, in terms of which the limitation of those rights is implemented. In our case, the Disaster Management Act and its regulations are a law of general application. Secondly, the limitation must be reasonable and justifiable in an open and democratic society. It is obvious that the reason for the limitation of freedom of movement, including the right to work, was meant to level the curve of infections of Covid-19, and thereby protect the lives of all South Africans, and protect the integrity of the Republic. In any open and democratic society, such a limitation would be regarded as reasonable. However, there is also a need for the limitation to be based on human dignity, equality and freedom (all of which are South Africa’s founding values, which form the foundation of the Constitution).
Section 36 proceeds to give guidance on the factors that must be weighed in order to determine if a limitation is indeed reasonable and justifiable in an open and democratic society. The first factor is the nature of the right. For instance, and without suggesting a hierarchy of rights, the right to freedom of movement is much easier to limit compared to the right to life.
Further, there must be a rational link between the limitation and its purpose (section 36(b) and (d)). In other words, a purposeless limitation would not withstand constitutional scrutiny.
The rise in COVID-19 litigation
Indeed, many individuals felt that their rights were being unduly restrained by the lockdown and its regulations. Some were genuine challenges to the law as it stood, and the courts had to deal with those challenges and offer a remedy. Others were merely frivolous attacks on the Government, and an attempt to gain publicity.
Examples of COVID-19 litigation that took place include the following instances:
In a challenge brought by students at the University of Witwatersrand, the court had to deal with the legality of the university’s action of sending students away from residences at the start of the Covid-19 pandemic in South Africa. This decision by the university came about after a student at the institution had tested positive for COVID-19. The main thrust of the students was that the closure of university residences and the order to leave those residences within 72 hours threatened their right to life and right to access healthcare. They claimed that the university had the responsibility to have students tested. During oral argument, the applicants abandoned their initial claim and instead sought an alternative relief that they should be allowed to remain in their residences and self-isolate. The court dismissed their application.
In Mohamed and Others v President of the Republic of South Africa and Others, the applicants challenged the COVID-19 regulations, alleging that they were unconstitutional to the extent that they did not allow Muslims to freely move between their homes and the mosque for their daily prayers, including the Friday prayer. In other words, to the extent that the regulations prohibited congregational prayer, the applicants argued, they ran afoul of the Constitution. The court dismissed their application, finding that the limitation of their rights was justified as the Government sought to flatten the curve of transmissions.
In Solidarity obo Members v Minister of Small Business Development; Afriforum NPC v Minister of Tourism, the court had to deal with a challenge to the power of Ministers to make decisions in response to the Covid-19 pandemic, where such decisions were regarded as racist by the applicants. The two lodged separate but similar matters, which the court decided to join as one matter. In this case, the two Afrikaner interest groups challenged the Ministers of Small Business Development and other Government Departments, for their chosen mode of relief fund allocations. The Ministers of these two departments had indicated that principles of Broad-Based Black Economic Empowerment (BBB-EE) would form part of the determining criteria for businesses to be assisted from the relief funds. Solidary and Afriforum did not like that approach and lodged an application in court, seeking the review and setting aside of the Ministers’ decisions to include race in the formula. Both challenges failed when the court found that the Ministers were right in pursuing the transformative imperative contained in both section 10 of the BBB-EE Act 53 of 2003 and the Constitution. The challenge by Afriforum and Solidarity could also be found wanting in light of section 195(1)(i) of the Constitution, which provides that public administration must be alive to the needs to redress imbalances of the past to achieve broad representation. The Ministers’ inclusion of BBB-EE was aimed at ensuring that those sectors of society, who were worse off economically prior to the pandemic, are not negatively impacted on by a governmental response that fails to acknowledge those historical injustices.
Other cases included an application brought in the Cape High Court, seeking permission for a parent resident in the Western Cape Province, to travel to Bloemfontein (in the Free State Province). The applicant’s minor children were temporarily residing with their grandparents in the Free State at a time when cross-provincial travel was prohibited. The court held in favour of the parent, authorising the cross-provincial travel for the purposes of picking up the minors. The order of the court indicated that in light of the court order, no permit would be required for the parents to fetch the minors.
Interestingly, there were patently frivolous attempts to abuse the court process for mere publicity. Hola Bon Renaissance Foundation (HBR) approached the Constitutional Court directly and on an urgent basis, seeking an order declaring the 21-day Lockdown unconstitutional. HBR’s main claim was that the Lockdown violated a broad category of rights, viz dignity, freedom of movement, freedom of trade, occupation and profession, and access to healthcare, food and water. The Constitutional Court dismissed the matter on the basis that it did not bear any prospects for success.
The response by the South African Government was timely and taken within the parameters of the Constitution. South Africa was experiencing its third pandemic in a 100-year period: first, it was the influenza pandemic of 1918, then the HIV/AIDS pandemic in the early to mid-1990s and now the current COVID-19 pandemic. It could be said that history has taught the Republic valuable lessons on how to handle such outbreaks. It is worth noting that the pandemic took place in the era of freedom, where constitutionalism and the rule of law have been embraced as fundamental pillars of the South African society at large. Hence the Government’s response flowed from existing legal frameworks, supported by novel regulations crafted in response to the situation as it developed. It is also worth noting that individuals who felt aggrieved had the opportunity to challenge the regulations in court, and the executive, where the applicant was successful, actually complied with those court orders.