Authors: Candice Pillay – Director & Sarah Goldman – Candidate Attorney
The COVID-19 pandemic was declared a national disaster on 18 March 2020, bringing the Disaster Management Act 57/2002 (the DMA) into effect. Section 27(2) of the DMA has conferred extensive powers to make regulations on Dr Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs and responsible for the National Disaster Management Centre. The nature of the regulations she is permitted to make are expressly stipulated in S27(2)(a)-(o) of the DMA and include those which regulate the movement of persons and goods to, from or within the disaster-stricken or threatened area, together with other steps which may be necessary to prevent an escalation of the disaster or to alleviate, contain and minimise the effects of the disaster.
Perhaps the most noteworthy of all the regulations made to date are those which brought about, and which continue to enforce, the 21-day national lockdown. Over the course of the three weeks leading up to, and with commencement of, the lockdown, borders have closed, gatherings of any kind have been prohibited and the liberty to leave one’s residence has been severely circumscribed. These restrictions have caused many to question whether their fundamental rights, including the rights to freedom of assembly and movement, are being unreasonably infringed upon.
It is trite law that most rights are not absolute and that they can be limited in certain instances to provide for the furtherance of competing rights. The limitation of rights must always occur within the parameters of the Constitution and with reference to the “limitation clause”. This limitation clause, found at S36 of the Constitution, has guided the courts in a multiplicity of decisions concerning constitutional rights and entitlements including the prolific judgement in S v Makwanyane 1995 (6) BCLR 665 where the Constitutional Court found the death penalty to be unconstitutional for placing an unjustifiable limitation on the right to dignity and life.
The limitations clause concerns itself with whether a law which limits rights is justifiable in terms of the purpose it is aiming to achieve. All persons are vested with the authority to approach a competent court and call upon the court to determine whether the limitation of rights brought about by a law falls foul of the standard imposed by the limitation clause. The content of all legislation, subordinate or otherwise, can be brought before the courts to assess, and the declaration of a national state of disaster has not removed this power. The content of the regulations could be challenged for falling short of the standard imposed by S36 in relation to the limitation of rights. Alternatively, S27(2) of the DMA could itself be challenged for vesting the Minister with the power to consider regulating the movement of goods and persons. It is only the High Courts, the Supreme Court of Appeal and the Constitutional Court that have the power to pronounce on the constitutionality or otherwise of a law and in all instances these pronouncements must be confirmed by the Constitutional Court.
When a court considers the constitutionality of a limitation, they will refer directly to the limitation clause in S36. In terms of S36(1), the constitutionality is dependent on whether the right is limited in terms of a law of general application "to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom". The reference to "law of general application" means that the limitation must be authorised by legal rules.* In the context of the national lockdown, the limitation has been authorised by legal rules, namely the DMA and the regulations made in terms thereof.
The limitation clause goes on to state that in assessing the reasonableness and justifiability of the limitation, all relevant factors must be considered. The factors listed in S36(1)(a)-(e) aid in this analysis and include the nature of the right which is being limited, the importance of the purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and the purpose of the limitation, and whether there are less restrictive means to achieve the same purpose.
It is through the application of the above mentioned factors that the courts come closer to determining whether a limitation is constitutionally compliant. In applying these factors to the national lockdown, a court would start by considering the nature of the limited rights, namely freedom of movement and freedom of association. In a newly founded democracy, the ability to move freely and associate without restriction is extremely important. It is a cornerstone of the constitutional dispensation and signifies a clear break from the segregation which characterised the past. The purpose of the limitations on these rights is to curtail the spread of COVID-19, a highly infectious disease. The importance of this purpose is significant; it aims to preserve life and further the wellbeing of all persons, especially those who are already vulnerable. The limitation requires persons to stay within their residences unless they are required to leave to provide an essential service or to acquire essential goods or services. The effects are extensive insofar as they prevent persons from leaving their residences at will, however this limitation does not extend to preventing persons from leaving for the purposes of acquiring food, healthcare services or social grants. The relationship between the limitation and its purpose is apparent; the limitation seeks to restrict movement and the purpose of this limitation is to prevent the spread of the COVID-19 virus between persons. Whether there is a less restrictive means by which to achieve the purpose is not clear, however if regard is had to the infection rates in other countries prior to the imposition of a comparable lockdown, it would seem that less restrictive means are not as effective. South Africa adopted less restrictive measures initially by limiting social gatherings and putting in place distancing measures. However, these were not effective in limiting the spread of infection.
As the analysis above shows, the limitations, despite being extensive, are not only reasonable and justifiable considering the prevailing circumstances, but arguably necessary. While challenges to the restrictive measures brought about by the regulations remain possible, it is unlikely that they would succeed. In times such as these, where uncertainty prevails, laws which limit our liberties may be required to preserve life, health and wellbeing. Provided that these limitations pass constitutional muster, particularly with reference to the limitation clause, they should not be regarded as a violation of our fundamental rights but should instead be perceived as a temporary measure necessitated by exceptional circumstances.
* IM Rautenbach: 2014. Proportionality and the limitation clauses of the South African Bill of Rights. Potchefstroomse Elektroniese Regsblad (17)6: 2251.
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