Civil liberty during a state of disaster or emergency in SA

The coronavirus lockdown has brought to the fore of public discourse the question of civil liberty during times of public crisis, particularly regarding the “limitation” and “derogation” (or suspension) of South Africans’ constitutional rights in the Bill of Rights. This paper considers this and other questions.

There is a crucial difference of degree between the limitation and suspension of rights. When a right is limited, its essential nature remains intact. It is exercisable subject to provisos. When it is suspended, its essential nature is extinguished. It is no longer exercisable.

The restrictions on freedom of movement (which in most cases outright prohibits movement except under strictly delineated circumstances) and trade amount to a suspension rather than a limitation of those constitutional rights. The restrictions on freedom of assembly and association (gatherings, funerals, etc.) also get very close to, if not crossing that line already. The lockdown is a very severe incursion on constitutional rights, and goes far beyond what section 36 of the Constitution, which provides for the limitation of rights, contemplates.

It appears, then, that the coronavirus regulations adopted under the Disaster Management Act are being used to respond to what is effectively a de facto (factual) but not a de jure (legal) state of emergency. In other words, government appears to be operating as though there is a state of emergency, with President Ramaphosa’s pre-lockdown speech doubling as a “stealth” declaration of a state of emergency. If this is true, it is highly improper and unconstitutional.

Government seems to be omitting the declaration of a de jure state of emergency because there has been no complete breakdown in public order and peace, which is a requirement for a state of emergency to be declared under section 37 of the Constitution.

It is important for government to proceed with its measures in compliance with the Constitution. But it is even more important for civil society and South African citizens to keep a keen and watchful eye on exercises, excesses, and abuses of government power.

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