The action taken on 23 March 2020 by the President of South Africa, Cyril Ramaphosa, to declare a National State of Disaster has sparked various debates over the balance between human rights and the need to protect the nation from the spread of COVID-19. The 21-day national lockdown and subsequent 14-day extension resulted in every individual being instructed to stay at their homes, to practice social distancing and only leave their homes when it is necessary to do so (for example to purchase essential goods such as food and medication, to collect their social grant or to seek urgent medical assistance). An exception was made for employees who provide essential services, namely medical practitioners, funeral parlours, and cashiers to name a few. Some individuals have gone as far as stating that the requirement to produce permits for being out of their homes reminds them of pass-laws during the apartheid era.
It goes without saying that the national lockdown places a limitation on rights. At the top of the list is the right to freedom of movement and residence, which is provided for in section 21 of the Constitution of the Republic of South Africa, 1996. The section states that everyone has the right to to freedom of movement, to leave the Republic and to reside anywhere in the Republic. However, rights are not absolute.
THE LIMITATION CLAUSE
The rights in the South African Bill of Rights are not absolute. This means that rights may be limited or infringed upon when it is justified under the circumstances. Section 7(3) of the Constitution provides for the limitation of rights in terms of section 36 of the Constitution or in terms of any other provision in the Bill of Rights. Section 36 of the Constitution, also known as the general limitation clause, provides for the limitation of rights where it is justified with consideration of all relevant factors including, but not limited to those listed in the section. The section reads as follows:
(1) The rights in the Bill of Rights may be limited only in terms of 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, taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
JUSTIFICATION FOR THE LOCKDOWN
When considering the severity of COVID-19, the lockdown appears to be a reasonable and justifiable limitation of rights in order to prevent the spread of the virus to a scale that would overwhelm the country’s healthcare system. The devastating effects of delayed reaction to the pandemic are proven by the rapid spread and high fatality rate in countries like Italy, while China effectively managed the spread of the virus through the quick and strict enforcement of a national lockdown as a method of protective and preventative measures. The timeous reaction to the pandemic has proven to be effective in South Africa as well. President Ramaphosa has stated that although the tally of infection rates will continue to rise as more tests are conducted, he is certain that the numbers would have been much higher had the lockdown not been enforced at the time it was.
The limitation of certain rights is sometimes necessary to uphold and protect other rights. The lockdown limits the right to freedom of movement, however it promotes and protects rights such as the right to life and the right to access to healthcare services.
Author: Lindiwe Pinkoane BA; LLB (University of Johannesburg)