Media release: New report: Constitutional validity of coronavirus lockdown regulations is disputable

Media release
10 April 2020

The Free Market Foundation’s (FMF) new report, “Civil liberty during a state of disaster or emergency in South Africa: The case of the coronavirus pandemic”, reflects the FMF’s serious concern about the infringement on South Africans’ civil liberties and constitutional rights by the lockdown regulations, and calls upon such transgressions of the law to be rectified. It is of deep concern that in little more than the first week of the lockdown, eight South Africans lost their lives at the hands of the security forces in the latter’s attempt to enforce the lockdown regulations. Two of those died while in police custody.

South Africa in the 1980s was characterised by widespread reform away from strict Apartheid by the government of PW Botha. Much, if not all this reform, however, was overshadowed by what South Africans today associate most closely with that decade: brutal, successive states of emergency where government, then not bound by any constitutional bill of rights, made short work of South Africans’ common law freedoms. The memory and psychological scarring of this lawless regime lingers for many South Africans. Others are today experiencing it for the first time.

In the report, FMF Head of Legal, Martin van Staden, critically considers the legality of the regulations promulgated between 18 March and 2 April 2020 to bring about and enforce a so-called “lockdown” on all South Africans. With this lockdown, government hopes to combat the spread of the COVID-19 (novel coronavirus) pandemic. 

The report notes the crucial difference of degree between the limitation and suspension of rights. Section 36 of the Constitution allows rights to be limited subject to a strict test for reasonableness and justifiability. Section 37 of the Constitution allows rights to be derogated or suspended, but only after there has been a breakdown in public order and a state of emergency has been declared. 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.

In the present crisis, no state of emergency has been declared.

The restrictions on freedom of movement (which in most cases 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 contemplates.

This does not deny that circumstances might justify the limitation or suspension of rights – indeed, the Constitution makes explicit and clear provision for such an eventuality. However, if that event arises, it is government’s responsibility to proceed in tandem with the Constitution, and it is up to civil society and all citizens to be ever vigilant about how government conducts itself. It is doubtful whether such constitutional adherence and vigilance is being displayed during the present crisis.

The report concludes thus that it appears that the lockdown 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 the required breakdown in public order has not occurred.

While the FMF report is concerned chiefly with legal analysis and implications, there is a very real human element to this story: More than 56 million South Africans, of whom the majority are poor, are being deprived of the protections for their rights – their livelihoods, dignity, and freedom. Their rights are not only threatened by a well-meaning but inherently coercive and ineffective government, but also by the very COVID-19 virus itself.

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.

The full report can be read here.

Help FMF promote the rule of law, personal liberty, and economic freedom become an individual member / donor HERE ... become a corporate member / donor HERE