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In terms of s 15(1) of the Constitution ‘[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion’ and in s 31(1) it provides that ‘[p]ersons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community –

(a) to enjoy their culture, practice their religion and use their language’.

Does the lockdown prohibit or infringe these rights?

The relationship between ss 15 and 31 of the Constitution is not entirely clear. It is not evident whether, in the absence of any reference to the manifestation of religious practice in s 15(1), religious practice should be regarded as protected in the group rather than individual freedom. The Constitutional Court clarified the nature of relationship between the two rights. Section 15(1) protects the practices of religious sects, groups, associations, communities and institutions. In the case of Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC), Ngcobo J said ‘ss 15(1) and 31(1)(a) complement one another. Section 31(1)(a) emphasises and protects the associational nature of cultural, religious and language rights. In the context of religion, it emphasises the protection to be given to members of communities united by religion to practice their religion.’

In the case of S v Makwanyane and Another 1995 (3) SA 391 (CC), O’Regan J said, ‘[t]he right to life is, in one sense, antecedent to all the other rights in the Constitution. Without life, in the sense of existence, it would not be possible to exercise rights or to be the bearer of them. … This concept of human life is at the centre of our constitutional values’.

At the outset, South Africa (SA) is currently in a national state of disaster and not in a state of emergency. A national state of emergency has to be approved by Parliament before it is enforced.

The purpose of the national state of disaster is that the President has, through his cabinet, weighed the key issues of bringing such a declaration into effect and the impact it will have on the economy of the country and the people. The entire purpose of the national state of disaster and lockdown is for protection of life and the sanctity of life.

Section 11 of the Constitution clearly states that: ‘Everyone has the right to life’. Section 24 of the Constitution states that: ‘Everyone has the right –

(a) to an environment that is not harmful to their health and well-being’.

What we do have through the lockdown is a limitation with a purpose to protect health, which is a national prerogative.

Even when we look at s 31 of the Constitution, this right is not a permanent denial, as everyone still has a right to practice their religion. The Constitution does allow in our open and democratic society to limit rights. As I stated above, we are not denied the right to practice our religion, but a restriction of movement has been imposed. We must look at why we have this limitation and weigh it up. The purpose of the limitation is that it would result in the effective reduction of the risk of the spread of the virus that causes COVID-19. If access to religious institutions are allowed there is a high risk of the virus attacking asymptomatic people, who will in turn, infect their family at home. The entire purpose of the limitation is to prevent the spread of the virus.

If we compare the framework of the violation of the lockdown versus the limitation thereof, then this temporary limitation is in the best interest of all citizens. The right to life must be protected.

When looking at the limitation its purpose is for the benefit of all citizens of which, Muslims, Christian, Jewish and Hindu followers form part, the President wants to protect the lives of all the people of SA irrespective of religious persuasion.

The rationalisation is that if the President allows one community, which is a minority, to open their place of worship, then he will have to allow the other communities to do that too and this will only speed up the spreading of the virus resulting in many fatalities. There cannot be a violation of a right if the purpose is a better purpose, namely the sanctity of life. There is a duty and it encompasses an obligation to protect the citizens of SA from unlawful threats to their life and physical well-being.

In the case of Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC), the Constitutional Court found that the common law of delict was in need of development in order to comport with the constitutional entrenchment of rights to life, dignity and to freedom and security of the person. The court further endorsed a dictum by the European Court of Human Rights, according to which the right to life ‘may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual’ (Carmichele at para 45).

In the case of Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others 2003 (3) BCLR 288 (C) the High Court recognised that the state ‘have a legal duty to protect the lives and property of members of the public who commute by rail’.

Furthermore, there can be no violation if such limitation is reasonable and based on rights. In terms of Constitutional law public interest always supersedes when balancing a right. It would be different if public interest was eradicating religion all together and that is definitely not the situation.

Madala J in Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) stated: ‘The State undoubtedly has a strong interest in protecting and preserving the life and health of its citizens and to that end must do all in its power to protect and preserve life.’

We are not being denied our right to continue to perform all our prayers in our homes. The main purpose has been to flatten the curve and also protect the poor and vulnerable societies who may face the brunt of the virus. South Africa has very limited resources when it comes to dealing with a massive outbreak. The United States, Italy and Spain are examples where the pandemic has ravaged the population. These countries have health care systems that are of high standards.

The measures implemented by the South African government are not just essential, but critical, not only for the sake of government but for every individual’s safety and health.

Desai J in the case of Victoria & Alfred Waterfront (Pty) Ltd and Another v Police Commissioner, Western Cape, and Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C) stated: ‘The rights to life and dignity are the most important of all human rights. By committing ourselves to a society founded on the recognition of human rights, we are required to value those rights above all others.’

Professor Salim Abdool Karim explained it very explicitly. He said SA has had a unique trajectory, as the government intervened and put the lockdown in place at the right time. After the first two cases were reported, within the first week it increased to 21 cases. South Africa’s daily average was standing at 110 cases and after lockdown we had 67 cases per day.

Prof Karim also stated that if the lockdown is ended abruptly then all that SA had achieved till now would be lost and the country will run serious risks of infections.

Prof Karim gave an example of small fires in the forest. The small flames that crop up in the forest should be found and doused else it would be very difficult to extinguish the large raging fires. South Africa has over 2,5 million people who are HIV positive and over 500 000 with low CD4 counts and is also heading towards the winter and flu season, thus more caution needs to be taken.

Quite clearly, the limitation is vital in the protection of life and cannot be a violation. The right to life is the most basic, the most fundamental, the most primordial and supreme right, which human beings are entitled to have and without which the protection of all other human rights become meaningless or less effective. If there is no life, then there is nothing left of human dignity. The protection of life is, therefore, an essential prerequisite to full enjoyment of all other human rights.

Mohammed Moolla BProc (UKZN) is a senior magistrate at the Wynberg Magistrate’s Court in Cape Town.

This article was first published in De Rebus in 2020 (June) DR 20.