Are the stringent COVID-19 lockdown regulations unconstitutional and unjustifiable?

September 1st, 2020
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Picture source: Gallo Images/Getty

On 15 March, the South African government declared a national state of disaster in terms of the Disaster Management Act 57 of 2002 (the Act). On 23 March, President Cyril Ramaphosa announced that South Africa (SA) would enter a nationwide lockdown for 21 days with effect from midnight on 26 March.

To ensure that measures announced were implemented, President Ramaphosa also announced the deployment of the South African National Defence Force to support the South African Police Service.

On 27 April, United Nations High Commissioner for Human Rights, Michelle Bachelet, denounced 15 countries in the world for unacceptable human rights violations and a ‘toxic lockdown culture’. South Africa was singled out as one of the worst perpetrators (Emma Farge ‘U.N. raises alarm about police brutality in lockdowns’ (www.reuters.com, accessed 8-2-2020)). Around the globe, many newspapers and news agencies reported that SA had some of the strictest lockdown rules and regulations in the world (Associated Press ‘South Africa eases one of world’s strictest coronavirus lockdowns’ Los Angeles Times 1 May 2020 (www.latimes.com, accessed 8-2-2020)).

On 1 May, level 4 came into effect and on 1 June, level 3 came into effect. South Africa’s level 4 was significantly more stringent and invasive than the full lockdown regulations imposed by most countries around the globe. Many of the lockdown regulations, such as specified times as to when one was allowed to run or walk, where one was allowed to walk, the curfew that was in place between 8 pm and 5 am, and that retail stores were only being allowed to sell certain items but not others, including the ban on the sale of alcohol and cigarettes seemed to be nonsensical arbitrary rules that have had no basis or justification in law, science or epidemiology.

In ch 2 of the Constitution, citizens are guaranteed certain inalienable fundamental human rights, which include –

  • the right to human dignity (s 10);
  • the right to freedom and security of the person (s 12);
  • freedom of assembly and the right to protest (s 17);
  • freedom of movement (s 21);
  • the right to education (s 29); and
  • the right of cultural, religious or linguistic communities to enjoy their culture, and practice their religion (s 31).

The sections referred to above should also be read with s 7(2), which provides that ‘[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights’.

A pertinent question arising from this, is whether the regulations to combat the COVID-19 pandemic and which infringe on various fundamental human rights, violate the South African Constitution or whether it is a justifiable infringement in an open and democratic society based on dignity, equality and freedom.

It is, therefore, necessary to set out what the Constitution provides with regard to the limitation of fundamental human rights. As fundamental rights are not absolute, but subject to restriction by other rights and the legitimate needs of society, not all infringements are unconstitutional (Willem van Aardt State Responsibility For Human Rights Abuses Committed By Non-State Actors Under the Constitution (LLD thesis, NWU, 2004) at 378). An infringement that takes place in line with a valid ratio, which is recognised as a legitimate justification by the Constitution, will not be regarded as illegal (Van Aardt (op cit) at 379). The suspension of fundamental human rights during a declared state of emergency must also be distinguished from the ordinary limitation of rights in terms of s 36 of the Constitution. The latter is continuously applicable while derogation in terms of s 37 applies only in times of public emergency. Since the South African Government did not declare a State of Emergency, but a State of Disaster in terms of the Act, s 36 applies.

Typically, the analysis of a Constitutional violation under ch 2 takes the form of two steps. In the first stage, the applicant is required to demonstrate that their ability to exercise or enjoy fundamental human rights have been violated. The applicant must then further show that the law or governmental action in question actually impedes the full enjoyment and exercise of the fundamental human rights in question by demonstrating that the law or governmental action either expressly intends to restrict the right, or effectively restricts the exercise of the right. If the court finds that the governmental action in question infringes the exercise of fundamental human rights, the analysis may move to the second stage. In the second stage, the government will be required to prove that the infringement is justifiable under s 36.

If the government wishes to demonstrate that the restriction of the fundamental human right is constitutionally justifiable, s 36(1) requires that the government must answer at least two questions satisfactorily. The first, is the restriction taking place in terms of law of general application? Secondly, is the limitation 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 of the purpose of the limitation; the nature and extent of the limitation and whether there are less restrictive means to achieve the purpose (s 36(1)(a) – (d)).

For a law to be recognised as ‘a law of general application’ it must be general and apply to government and citizens alike. It must further also be accessible to the public. The last-mentioned requirement also means that the law must be precise and not vague (Van Aardt (op cit) at 372). The law of general application test, therefore, requires generality, non-arbitrariness, publicity and precision (Woolman Constitutional Law 1ed (Cape Town: Juta 1996) at 12-18).

Given the arbitrary nature of many lockdown regulations, frequent amendments and uncertainty regarding the application and enforcement of such regulations, it is highly unlikely that the government will be able to meet this requirement.

Once the determination has been made that the law in question is a law of general application, then the court must consider whether the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all the relevant factors set out in s 36(1)(a) – (d) (S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 23; S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC) at para 33).

  • Section 36(1)(a): The nature of the right

Fundamental human rights differ in weight. Rights that are of particular importance to the Constitution’s ambition to create an open and democratic society based on human dignity, freedom and equality, will carry a great deal of weight in the proportionality exercise (Dennis Davis, Halton Cheadle and Nicholas Haysom Fundamental rights in the Constitution: Commentary and cases (Cape Town: Juta 1997) at 319). It will, therefore, be more difficult to justify the limitation of such rights. The proportionality test requires that the harm done by the state’s action or law should be weighed against the benefits that the state’s action, or law seeks to achieve (Van Aardt (op cit) at 379).

It is my view that the state’s draconian lockdown regulations violate approximately 59 million citizens’ right to human dignity and freedom in the most pervasive manner in living memory. Citizens are treated like naughty children with the government making various paternalistic and arbitrary rules and regulations in an attempt to curb the spread of a disease that has a survival rate of 99,9% (see Dr Scott W. Atlas ‘The data is in — stop the panic and end the total isolation’ (www.thehill.com, accessed 14-8-2020)).

It is simply unjustifiable to violate the fundamental human rights of 99,9% of the population, and in the process destroy the livelihoods of millions, increasing hunger and the chances of starvation, in an attempt to protect 0,1% to 1% of the population.

  • Section 36(1)(b): The importance of the purpose of the limitation

Reasonableness requires that the limitation of a fundamental right must serve a purpose. Justifiability requires that it must be important in a constitutional democracy. The limitation of rights, which does not serve the purpose of and contribute to a society based on human dignity, equality and freedom cannot be justifiable (Cheadle Haysom (op cit) at 319). A limitation must also serve a legitimate purpose that all reasonable citizens would agree to be of sufficient importance to infringe the fundamental human rights as referred to above (Johann de Waal, Iain Currie and Gerhard Erasmus Bill of Rights Handbook 4ed (Juta and Lansdowne 2001) at 158; Nico Steytler Constitutional Criminal Procedure (Durban: LexisNexis 1998) at 23). If the state action, inaction or law does not serve the purpose it intends to serve, then it cannot be a reasonable limitation (De Waal, Currie and Erasmus (op cit) at 161 and Steytler (op cit) at 23). If the state action, inaction or law only marginally contributes to achieving its purpose or fails to achieve its purpose, it will not be adequate to qualify as a legitimate limitation (Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) at para 20 – 22; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at para 59).

It is my view that while the initial lockdown may have been justified and has served the purpose of ‘flattening the curve’ in order for the health care system to prepare, the continued draconian lockdown measures can no longer be justified. Data setting out daily new cases indicate that the stringent lockdown in SA between 26 March and 1 May had little or no effect on the daily infection rate. In fact, on 1 May the infection rate was significantly higher than it was on 26 March 2020 after more than four weeks of the most draconian lockdown rules in the world (www.worldometers.info).

On 6 May in Rustenburg, Dr Zweli Mkhize himself admitted that extending the lockdown would not make much of a difference in flattening the curve for South Africa (‘Extending lockdown would not delay South Africa’s coronavirus peak by much: Mkhize’ (https://businesstech.co.za, accessed 2-8-2020)). Numerous recent international studies have showed that the lockdown has little or no effect on the rate of infection or the death rate (Greg Piper ‘University researchers find “no additional decline” in coronavirus infection rate from lockdowns’ www.thecollegefix.com, accessed 2-8-2020). The mortality rate suggested by the Stanford study would put COVID-19 on par with the deadliness of the seasonal flu, which has a yearly mortality rate around 0,1% for the vast majority of the population (see JD Rucker ‘BREAKING: Stanford study shows 50-85 times more people infected by coronavirus’ (https://noqreport.com, accessed 14-8-2020)).

  • Section 36 (1)(c): The nature and extent of the limitation

This consideration requires that the governmental restriction must impair the right as little as reasonably possible. To determine whether the limitation does more damage than is reasonable for achieving its purpose requires a factual assessment of the extent of the limitation (De Waal, Currie and Erasmus (op cit) at 160 and Van Aardt (op cit) at 379).

The harm being done to millions of South Africans includes widespread and pervasive infringement of citizens’ fundamental human rights to dignity and freedom of movement. National Treasury is predicting a loss of R 285 billion in revenue and that between 1,5 to 3 million jobs will be lost, which would lead to wide scale poverty and death as a result of hunger in an attempt to protect citizens against a disease with a mortality rate similar to that of seasonal flu (see Rucker (op cit)).

  • Section 36(1)(d): Less restrictive means to achieve the purpose

The limitation of fundamental human rights must achieve benefits that are proportional to the cost of the limitation. The infringement will not be considered proportional if there are less restrictive, but equally effective means to achieve the same purpose (Manamela at para 96–97).

Over the past three months it has become clear that there are numerous countries and states around the world that implemented significantly less costly and restrictive lockdowns than SA, yet achieved the same or better results than SA. The most pertinent example is Sweden, which controversially never implemented lockdowns or deployed its army to enforce lockdowns, nor committed human rights violations on a grand scale yet achieved satisfactory results in its battle against COVID-19. In fact, many European countries, which enforced lockdown had significantly worse infection rates and death rates than Sweden (Soo Kim ‘Sweden COVID-19 Death Rate Lower Than Spain, Italy and U.K., Despite Never Having Lockdown’ (www.msn.com, accessed 14-8-2020)). The World Health Organisation (WHO) lauded Sweden as a ‘model’ for battling COVID-19 as countries lift lockdowns. WHO Health Emergencies Programme, Executive Director, Dr Michael Ryan, said there are ‘lessons to be learned’ from the Scandinavian nation, which has largely relied on citizens to self-regulate (Jackie Salo ‘WHO lauds lockdown-ignoring Sweden as a “model” for countries going forward’ (https://nypost.com, accessed 2-8-2020).

It is my view that many of the arbitrary lockdown regulations are unconstitutional and unjustifiable.

Dr Willem van Aardt BProc (cum laude) LLM (UP) LLD (NWU) is a Human Rights and Constitutional Law Specialist in Chicago.

This article was first published in De Rebus in 2020 (Sept) DR 26.