Written by Mira Briel – Candidate Attorney
This article will consider the extent of the limitation of rights due to the national lock-down and the Regulations and whether such limitations are reasonable and lawful.
The much-praised decision by the South African government to declare the COVID-19 Pandemic a National Disaster in terms of the Disaster Management Act, 2002 (the Act) has resulted in the prompt enactment and publication of several Regulations and Directives (Regulations). The motivation for this decision and as a result, the overall purpose for which these Regulations have been and continue to be enacted, is to slow the spread of COVID-19 or ‘flatten the curve’, with the hope of sparing an already overburdened health system and ultimately save lives.
The implementation of the Regulations has affected every South African and forced businesses and individuals alike to change routines and adapt. While we emphatically support the Government’s plea for everyone to adhere to the Regulations, in unprecedented times such as these, it is also essential that the Constitution of the Republic of South Africa (the Constitution) be upheld at every turn and that the most vulnerable are not disproportionally impacted by COVID-19 or the national response thereto.
On this score, a clear distinction can be drawn between a state of emergency and a state of national disaster. In the case of the former, steps taken during a state of emergency may derogate from most of the rights in the Bill of Rights whereas, measures taken during a state of disaster must still comply with the Bill of Rights. Accordingly, in the present circumstances of a state of disaster, any limitations to rights in the Bill of Rights must be done in terms of law of general application to the extent that the limitation is reasonable and justifiable, as contemplated in section 36 of the Constitution.
The question we seek to answer is whether the limitations to several rights contained in the Bill of Rights in the Constitution, by the Regulations giving effect to the national lockdown, are reasonable and justifiable. For the purposes of this article, it is accepted that the Regulations enacted in terms of the Act constitute laws of general application. In order to make a determination in terms of section 36 of the Constitution, our courts have adopted a two-stage approach[1]: First, it must be established whether a right in the Bill of Rights has been infringed by law or conduct of the respondent. The second enquiry is whether the infringement can be justified as a permissible limitation of the right.
In the first stage of the analysis, a court will ordinarily determine the scope of the right, by way of interpretation and must then ascertain whether the right has been infringed by the law in question. In the second stage, the question whether an infringement of a right is a legitimate limitation is a far more factual enquiry than the question of interpretation and where appropriate, evidence must be led to justify the limitation.[2]
Section 36(1) of the Constitution sets out five factors which are relevant to the limitations enquiry:
(a) The nature of the right: the overall importance of the right in the constitutional scheme.[3]
(b) The importance of the purpose of the limitation: for a limitation to be justifiable, it must have a purpose.[4]
(c) The nature and extent of the limitation: a law that limits rights does not permit the use of a sledgehammer to crack a nut i.e. a consideration of proportionality.[5]
(d) The relation between the limitation and its purpose: the law must serve the purpose that it is designated to serve. This is a factual enquiry and evidence must be adduced.[6]
(e) Less restrictive means to achieve the purpose: if there are other means by which the purpose can be achieved without restricting rights at all or to such an extent, then that method must be preferred.
All of the above factors must be taken into account, but the list is not closed.
Should one or more of the Regulations be challenged in court, it is likely that the first hurdle of establishing that there has been a limitation of a right/s, will be easily overcome.
For example, section 21 of the Constitution entrenches the right of freedom of movement. The scope of this right is broad and is ordinarily enjoyed by most South Africans, to varying degrees. Regulation 11B has drastically curtailed the right to freedom of movement by confining every person to his or her place of residence, prohibiting gatherings, movement between provinces and movement between metropolitans and districts. Similarly, in an amendment to the Regulations published on 2 April 2020, the details of the contact tracing initiative, through the establishment of a COVID-19 Tracing Database (database), are set out in the newly inserted Chapter 3. The database will be made up of private information obtained from network providers, in some cases, without authorisation from the customer. Obtaining the relevant information in this manner, clearly compromises customers’ right to not have the privacy of their communications infringed, as set out in section 14 of the Constitution.
Arguments can be made in respect of the limitation of several other rights by the Regulations, including the right to education due to the closure of schools, freedom of trade, occupation and profession due to the closure of retail shops that sell non-essential goods and other restrictions, access to health care services due to the cancellation of elective surgeries and access to the courts due to the restriction of the types of matters eligible to be heard.
It is the second stage of the analysis that will be very difficult to overcome in a legal challenge to the constitutionality of the enacted Regulations. To illustrate this point, consider the limitation of the right to privacy by the Regulations enacted to give effect to contact tracing. The right to privacy has been attributed substantial weight by the courts. South Africa’s history of egregious violations of personal privacy[7], amplified by the present reality of state surveillance posing a threat to citizens, confirm the importance of protecting this right.[8]
The purpose of the Regulation which limits the right to privacy is to “…enable the tracing of persons who are known or reasonably suspected to have come into contact with any person known or reasonably suspected to have contracted Covid-19”, thereby preventing the further spread of COVID-19. The limitation imposed by the Regulations in this case, is not absolute. Several sub-regulations are included to qualify the limitations imposed by the Regulation which has the effect of restricting the extent of the limitation. For example, the fact that the information “may only be obtained in relation to the location or movements of persons during the period 5 March 2020 to the date on which the national state of emergency has lapsed..”.
It must then be considered whether the Regulation giving effect to contract tracing has the effect of actually tracing persons who have come into contact with any person know or reasonably suspected to have contracted COVID-19? Context-specific evidence must be adduced to answer this question satisfactorily; perhaps at this stage it is too early to tell. At a high-level, contact tracing seems to have been effective in other countries faced with the COVID-19 pandemic to achieve this purpose. Finally, having consideration for the protective mechanisms put into place by the sub-regulations, there are no obvious less restrictive means of determining the location and/or movements of any person who satisfies the identified criteria.
A priority at the moment is to implement measures that will contribute towards ‘flattening the curve’. This cannot come at the cost of the disproportionate limitation of constitutionally enshrined rights but as demonstrated in the analysis above, it would seem from a reading of the Regulations implementing contact tracing as an example, the approach has been carefully considered and the Regulations do not permit for an unfettered limitation of everyone’s right to privacy.
A court considering a legal challenge of this nature may be presented with several additional factors to consider such as the government’s obligation to contain this threatening pandemic in a hugely resource constrained environment, the disparate manner in which the Regulations limit South African’s rights often dictated by socio-economics and the way in which the Regulations are implemented.
At a glance and without engaging in the finer detail here, the prevailing view is that the national lockdown and corollary Regulations have significantly limited many South Africans’ rights but these limitations are considered to be reasonable and justifiable as required by section 36 of the Constitution. It would seem that this view is supported by the Constitutional Court, at this stage, which on 30 March 2020 dismissed an application for direct access by the Hola Bon Renaissance Foundation to declare the Regulations unconstitutional stating that, “the constitutional court has considered the application for direct access to this court on an urgent basis. It has concluded that the application should be dismissed as it bears no reasonable prospects of success.”
The position proffered in this article is done so with caution. A legal challenge of this nature is complex and fact specific so the approach taken here must be understood to be general. Furthermore, the Regulations are frequently amended to accommodate shifting priorities and in response to the realities of a national lockdown which requires a consistent re-assessment of the constitutionality of the Regulations as and when they are enacted.
[1] See for example Mlungana and Others v The State and Another [2018] ZACC 45.
[2] Currie and de Waal The Bill of Rights Handbook 6 ed. 2013 at 153.
[3] S v Makwanyane 1995 (3) SA 391.
[4] Richter v Minister of Home Affairs 2009 (3) SA 615 (CC) [36].
[5] S v Manamela 2000 (3) SA 1 (CC) [34].
[6] S v Makwanyane see note 3.
[7] See Mistry v Interim National Medical and Dental Council and Others 1998 (4) SA 1127 at 28.
[8] See Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others 2020(1) SA 90 (GP).