THE SOUTH AFRICAN LOCKDOWN: LIMITATIONS AND THE LAW

On the 23^rd of March 2020, a week after President Cyril Ramaphosa declared South Africa to be in a state of national disaster, the President announced a national lockdown for a period of 21 days to curb the spread of the COVID-19 pandemic which has the world population fearing for their lives.

In imposing the national lockdown, the President announced several limitations and prohibitions, the most significant being a complete lockdown, that is, the prohibition of South Africans leaving their homes unless it is for essential purposes.

Whilst a lockdown is necessary to destroy the chain of transmission of COVID-19, it is noted that the restrictions imposed by the President will limit the human rights of South Africans. There are factions that support this decision, and some that question its legality from a human rights perspective.

What is a lockdown?

A lockdown is defined as an emergency protocol which temporarily prohibits non-essential activities and requires people to stay at home with a departure therefrom only on an essential and/or urgent basis.

The nationwide lockdown was enacted in terms of the Disaster Management Act (‘‘the Act’’), an act promulgated to prevent or reduce the risk of disasters, mitigate the severity thereof and provide mechanisms for a rapid and effective response to disasters.

Section 27(2) of the Act allows for the regulation of the movement of people or goods to, from or within the disaster stricken or threatened area. The provision also authorises that  other steps may be taken to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster. It is therefore evident that the nationwide lockdown was authorised by this provision.

What is the effect of the lockdown on our constitutional rights and its limitations?

South Africa’s declaration of the national lockdown and the subsequent regulations aimed at slowing the spread of COVID-19 limits the rights and freedoms of South Africans in extreme ways. Some of the rights that are limited include the right to freedom of movement, freedom of association, freedom of trade, occupation and profession, the right to assembly, the right to have access to food and water as well as the right to education among others.

The Regulations gazetted under the Act in terms of section 27(2) must however, comply with the Constitution. The court can declare specific regulations unconstitutional and therefore invalid if the restrictions imposed are unjustifiable in terms of the the limitations clause in section 36 of the Constitution.

Section 36 of the Constitution allows for the limitation of constitutional rights but only if such a limitation is in terms of a law of general application and to the extent that such limitation is reasonable and justifiable in an open and democratic society. 

Factors taken into account to determine whether the limitation of a right is reasonable and justifiable include, the nature of the right, the importance of the purpose of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.

The limitations imposed on South Africans is in terms of a law of general application, that is, the Regulations. Despite the Regulations exempting its application on certain groups of people, it is still a law of general application on the legal reasoning that general application does not mean that a law must apply to everyone but simply that it applies to everyone that it regulates in the same manner.

Rights are not absolute and any limitation thereof maybe lawful. Rights may be limited if such limitation is for a sufficiently good reason. This good reason could be that the limitation serves a purpose that is considered legitimate by all reasonable citizens in a constitutional democracy that values human dignity, equality and freedom above all other considerations.

Many of the measures that the State has implemented to restrain the spread of the COVID-19 disease and associated hysteria is justifiable.

The magnitude and intensity of the COVID-19 pandemic could justify the limitations on certain rights including those resulting from the imposition of a lockdown.

The World Health Organisation has declared COVID-19 to be a pandemic and a public health emergency of international concern. This, in conjunction with the high death rates in other countries and South Africa’s exponential infection rate, form the purposes for which our rights are limited. This global emergency outbreak as well as the surrounding facts and statistics would, in my learned view, be an adequate justification for our government taking such extreme measures.

Considering the factors that have to be taken into account in terms of section 36 of the Constitution it is important to note that in determining whether a limitation is reasonable and justifiable a court would have to determine same on a case by case basis.

In what has been referred to as a somewhat bizarre instance by the media, the Hola Bon Renaissance Foundation made an application to the Constitutional Court seeking to interdict the President from continuing with the lockdown, alleging that the President abused his powers in declaring a lockdown and that same violates South Africans’ rights to human dignity, freedom of movement, freedom of trade, occupation and profession and access to healthcare, food and water. The Constitutional Court dismissed the application on the basis that the case had no prospect for success.

Chief Justice Mogoeng-Mogoeng through a letter written and circulated on the 24^th of March 2020, reminded us of possible legal challenges in relation to the constitutionality and validity of the measures being implemented by the government and in relation hereto, emphasises the importance of the court remaining open during this period.

Considering that these are unprecedented times, it would be interesting to assess the manner in which the court applies the limitations clause in light of the world being in a global health emergency if and when the case arises.  

By Sherianne Pillay