Let us assume, without deciding, that by early March 2020 there were indications, and indeed some evidence, of the possibility of a tidal wave of potentially fatal Covid-19 infections sweeping across South Africa. A wave that would swamp the healthcare facilities available in the country causing death at a hugely increased rate, bringing with it terrible suffering and creating havoc in the daily lives of the general population.
Our decision-makers no doubt took account of the death rate in Wuhan, where the pandemic started in its wet markets via cross-infection with live exotic species illegally imported as food or medicine. Policymakers considered the spiking mortality of the aged in northern Italy. The images of suffering in the television news clips and the media warnings of a worldwide threat to the health of human life could not be simply ignored by policymakers in SA. Nor, on the other hand, could they allow themselves to panic; a sensible and proportionate response – one that is constitutionally compliant – was required.
Many countries have responded to the pandemic by declaring a state of emergency. This step is not legally possible in SA. Our supreme law, the Constitution, is clear on the circumstances in which a state of emergency is feasible as a regulatory response. A state of emergency may be declared only in terms of an Act of Parliament and only when the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency AND the declaration is necessary to restore peace and order.
The threat posed by the virus is not one that threatens peace and order; it threatens the lives of individuals who are susceptible to the infection for medical reasons which are not well known. These victims are usually elderly, ill or appear to have compromised immune systems which allow the virus to strike them down with horrible and sometimes deadly symptoms.
States of emergency may only be declared prospectively and then only for 21 days. Any extension has to be by way of a resolution of the National Assembly for no more than three months at a time following public debate in the Assembly. Subsequent extensions require a 60% majority.
When an emergency is declared it is feasible to derogate from the rights guaranteed to all in the Bill of Rights to the extent that the derogation is strictly required by the emergency. No law may permit or authorise indemnification in respect of unlawful acts, nor may any derogation of the non-derogable rights mentioned in the Bill of Rights be affected.
This summary of the relevant provisions shows why no steps to declare a state of emergency have been attempted. Instead, the executive branch of government, not parliament, looked to the legislation in respect of the declaration of a state of disaster and produced the regulations currently in force, in their amended form, in the hope that they would see off the threat to the lives and health of those vulnerable to infection by the virus. There is also the threat of available healthcare facilities becoming swamped by the sheer volume of patients.
A state of disaster does not permit a derogation of any of the rights in the Bill of Rights; not just those set out in the Table of Non-Derogable Rights in section 37 of the Bill of Rights.
It is, however, possible, in regulations made under the powers conferred in the state of disaster law, to place limitations on the rights guaranteed to all in the Bill of Rights. This step is possible only in terms of a law of general application, and then only 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:
- The nature of the right
- The importance and purpose of the limitation
- The nature and extent of the limitation
- The relation between the limitation and its purpose; and
- Less restrictive means to achieve the purpose.
It is plainly the purpose of the regulations now in place to minimise and control the threat posed by the unchecked spread of the Covid-19 pandemic into SA.
More than two weeks into the lockdown, only 25 deaths have been recorded while 2,173 people have tested positive out of 75,053 tested by 13 April. These modest but hugely encouraging figures have been achieved in a population now approaching 60 million according to official estimates.
The lockdown has been extended by two weeks and is now due to terminate at the end of April. There are no reliable projections available in respect of death rates due to Covid-19 in SA. The most reliable American research is however encouraging. The Seattle based Institute for Health Metrics and Evaluation predicts that in a country of about 330 million:
“Regarding deaths from the virus, the Institute’s previous general analysis still stands; however, the highest estimates are lower. IHME forecasts 81,766 deaths, with a range between 49,431 and 136,401. The estimated peak day, the modelling indicated, is April 16, with a projected 3,130 deaths nationwide on that day. Estimates for many states have been substantially revised because of more data. Data in the early days of the epidemic in each state can inform the trajectory of the epidemic, whether it will follow a pattern of rapid increase as in New York, or much slower increase as in Washington.”
[These predictions are constantly updated as fresh data becomes available: as they stand, adjusted to an overall population (like ours) of 60 million: the death rate range is from 8,987 to 24,576 which compares very favourably with the 280,000 deaths from HIV/Aids in SA in 2005.]
Any law, including any regulation, has to serve a legitimate purpose of government and it has to be rational in its scope and content. These notions are fundamental to the upholding of the rule of law.
There are those who question the legitimacy of the lockdown, pointing to the economic downside of making all but essential service providers stay at home to try to eke out a living via remote means using telephones, email and other features of cyberspace to do so. They point out dramatically that an above-knee amputation of the leg (the hobbling economic consequence of locking down) is not indicated when the patient (SA) complains of an ingrown toenail (the pandemic).
There are others who point to the sanctity of life (itself a guaranteed human right) and to the horrific effects of a rampant pandemic on the whole fabric of society. “Better safe than sorry” they argue, praising the president for perhaps erring on the side of caution rather than exposing thousands, if not millions, of his fellow South Africans to the threats posed by the viral infection spreading exponentially.
Aspects of the lockdown are arguably disproportionate to the threat it is designed to counter, especially as the extent of the threat may not be as grave as originally thought.
Preventing solo exercise, whether by cycling, running, swimming, walking or even, heaven forbid, dog-walking, has deleteriously affected the bodily and psychological integrity of millions of law-abiding citizens unnecessarily.
No sensible or proportionate limitation of rights can be divined in any of these limitations of rights to freedom of movement, dignity and good physical and mental health. At present, SA is the only country in the world in which it is illegal to purchase liquor, but perfectly in order to smoke one’s homegrown dagga. Even those who have been isolated, tested and found virus-free are banned from associating with each other.
Other features of the lockdown that are unlikely to pass constitutional muster are those relating to surveillance electronically and in a manner that infringes rights to privacy as well as those provisions that seek to create indemnity for those responsible for brutally locking down informal settlements and overcrowded townships like Alexandria and Masiphumelele. There the police and the army have behaved in ways indistinguishable from and reminiscent of the dark days of PW Botha’s successive states of emergency in the eighties.
It is also arguable that it is not reasonable and justifiable to expect a family of 12 that shelters at night in a tiny windowless corrugated iron informal structure to stay indoors or even “at home” all day. There are millions of poor people who live in informal settlements around the metropoles of SA who simply do not have the reasonable option of locking down indoors. Less restrictive measures for them are feasible.
Masks, physical distancing education, free sanitisers and general healthcare education, plus adequate nutrition and immune-boosting medication, would actually serve the objective of the lockdown far better than the “skop, skiet en donder” approach of some law enforcers, which has seen at least eight people die at the hands of those enforcers, two of them in police custody.
The pressure of the lockdown on the population has seen retail activity decline dramatically and looting begin. These are alarming developments that call for a kind and sensitive response from the government.
The amelioration of the regulations to render them more constitutionally compliant ought to be an urgent priority of the Cabinet. Ending the authoritarian excesses, both in content and implementation, is the right way forward. These are so foreign to an open and democratic society that values the dignity and freedom of its people.
A virus cannot be used as the pretext for seizing hegemonic control of all the levers of power in a democratic society bound by the rule of law. A state which has the constitutional obligation to respect, protect, promote and fulfil the human rights of all cannot lapse into authoritarianism due to its manhandling and misuses of its responses to a pandemic. DM