Legally we have entered unchartered waters that government, perhaps understandably, appears unable to navigate. Practically, the coronavirus regulations cannot be adhered to in a society composed like South Africa’s. In whichever way one approaches the issue, the coronavirus regulations should in large part be set aside and replaced by less restrictive measures to control the pandemic.
The regulations, promulgated under the Disaster Management Act on 18 and 25 March respectively, have given rise to a so-called national ‘lockdown’. This lockdown is expected to continue until 16 April, but there is a possibility that it might be extended.
It is accepted that, constitutionally at least, no right is absolute. But the Constitution is clear on how rights may be limited, and if necessary, suspended. Given our history it is no surprise that there exist very stringent constitutional safeguards, even in states of emergency, that aim to (or at least attempt to) protect against abuses of power.
But for an exempted few, the latest regulations force all South Africans, to remain home and close their offices, businesses, and places of work. The economic consequences of this are projected to be dire, with some estimating that the lockdown could lead to more than a million additional unemployed, and a GDP that might contract by 23%.
In this respect, section 22 of the Constitution, which guarantees the freedom to choose one’s profession, trade, or occupation freely, is relevant.
As my colleague, Jacques Jonker, notes, section 22’s internal logic does not allow the practice of a profession to be proscribed entirely. Provision is made for the regulation of a profession, but if practicing that profession is categorically prohibited, nothing remains to be regulated. The lockdown’s wide-ranging restrictions on business operations, in other words, appears to amount to a wholesale suspension of section 22 rather than a mere limitation, as the essential content of the right has been extinguished.
The same could be said of the section 21(1) right to freedom of movement. As Professor Gerhard Erasmus, who participated in the drafting of the Constitution, notes, in the case of limiting a right,
“The basic core of a right must always remain. Respect for the essential content of a right provides a final boundary for limitations.”
When this boundary is crossed – when the core of a right no longer remains, we are dealing with a ‘denial of a right’. The restrictions on movement since the lockdown was declared on 25 March cannot be said to amount to a mere limitation, as the default rule is now that one may not leave one’s home unless one is engaged in a closed list of activities. One can therefore not claim that this is any sort of meaningful ‘freedom’ any longer.
This has some important implications. It would appear that we are in a de facto state of emergency, as contemplated in section 37 of the Constitution, rather than a state of disaster, as contemplated in the Disaster Management Act of 2002. This means various constitutional rights have been suspended, and not merely limited under section 36(1).
The problem with the de facto state of emergency is that it is unconstitutional. There is no provision in the Constitution for an ‘implied’ or ‘implicit’ state of emergency. Indeed, any state of emergency must be declared, explicitly, by the President, in terms of the State of Emergency Act of 1997. This will immediately activate various legislative and judicial safeguards that are now absent.
The de facto state of emergency must be made de jure. But herein lies the probable reason for the President not declaring a state of emergency: The constitutional requirements for such a declaration are not present. For a state of emergency to be declared, the continued existence of South Africa must be at stake, and there must be a clear breakdown of peace and order. Neither of these requirements are satisfied by the current coronavirus outbreak.
I am not downplaying the seriousness of the pandemic, but we must bear in mind that its mortality rate is lower than that of other prevalent diseases in South Africa. In other words, if we are to regard the coronavirus outbreak as such a threat to South Africa’s very existence that it is grounds for a declaration of a state of emergency, then we must apply the principle throughout, and resign ourselves to a permanent state of emergency until all these other, worse conditions, are also solved.
It is also noteworthy that a lockdown in South Africa is completely impracticable.
In townships, but particularly for people in shanty houses, it is unreasonable to expect them to remain cooped up in such small spaces for three weeks. The reality of this has already manifested itself, with many people in townships simply ignoring the lockdown regulations. This was foreseeable and it is understandable.
Those of us who might be inclined to be judgmental, often find ourselves in spacious homes. We must appreciate that nobody is to blame for the presence of COVID-19, and that we should be careful in judging peaceful people for going about their daily lives and not adhering to the regulations.
As a jurist, I cannot recommend highly enough that the regulations be complied with, but that is the extent of it. Further than that, I would recommend we reserve judgment. These are exceptional times, but ‘acting normally’ is not something I am prepared to criticise others for, particularly not if adhering to the regulations would in their circumstances be more irrational than disregarding them.
These are interesting and unchartered times for South African jurisprudence. How the courts and legal community respond to the lockdown is something to keep an eye on. Above all, however, we must bear it foremost in our minds that the purpose of a constitution is to limit the scope and exercise of government power in favorem libertatis.
Indeed, protecting the freedom of the individual is the raison d’etre of the State.
This article was first published on BusinessBrief on 08 April 2020
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