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Under the heading ‘The virus does not discriminate; but its impacts do’, the United Nations policy brief on ‘COVID-19 and Human Rights’ states: ‘Responses need to be inclusive, equitable and universal – otherwise they will not beat a virus that affects everyone regardless of status. If the virus persists in one community, it remains a threat to all communities, so discriminatory practices place us all at risk. There are indications that the virus, and its impact, are disproportionately affecting certain communities, highlighting underlying structural inequalities and pervasive discrimination that need to be addressed in the response and aftermath of this crisis’ (United Nations Covid-19 and Human Rights www.un.org, accessed 14-5-2020).
We are currently in an invisible and non-quantifiable storm called COVID-19.
COVID-19 originated from Wuhan, China, and the first patient in South Africa (SA) tested positive for COVID-19 around early March. Soon thereafter, the number of positive cases dramatically increased. President Cyril Ramaphosa responded and declared a national state of disaster in accordance with the Disaster Management Act 57 of 2002. A nation-wide lockdown was further introduced whereby the national government released lockdown regulations and implemented support measures across various sectors. At the time of writing this article, South Africa entered day 54 and level 4 of lockdown.
COVID-19 is a fierce pandemic with numerous deaths across the world and unfortunately there is no date on our calendar, which we can circle, to indicate when the storm will finally pass. Yes, there are unprecedented hardships on social, political, health, and economic sectors, but even more so on basic human rights. These distresses are felt more harshly by the least protected in society who do not have access to adequate housing, clean running water, health care, food, or social security, which are all guaranteed basic human rights.
Simply put, the Constitution is based on transformative constitutionalism, which is the principle of achieving equality and eradicating inequality. This notion is closely linked to the fulfilment of socio-economic rights and guards against an excessive use and misuse of public or state power, which exploits the poor and vulnerable. It requires the state to be proactive and work towards transforming our society into a more equal one by ensuring that the rights under the Bill of Rights are realised.
Although a declaration of a national state of disaster permits limitations of rights subject to the limitation clause in s 36 of the Constitution, the question that arises is whether these rights are still given effect to during a national state of disaster, even if partly limited.
Section 21 of the Constitution guarantees the right to freedom of movement and residence, which has been severely limited due to strict lockdown regulations, which include the avoidance of physical proximity and local and international travel bans. For most people, especially the poor and vulnerable, the limitation of this constitutional human right directly affects their employment and livelihood with some expressing that they would rather die of COVID-19 than of hunger.
The right to access adequate housing is something, which has been overlooked by government for decades. The majority of informal settlements do not provide adequate housing and are not geared to face a pandemic. The right to health care services and water as envisaged in s 27 of the Constitution has been severely impacted due to the fact that most informal settlements do not have clean potable water or access thereto, which makes practising good hygiene an impossible task to adhere to.
The protection of inherent human dignity is another constitutional right guaranteed in s 10 of the Constitution. While it goes without saying that the loss of employment or livelihood impact on one’s dignity; the rapidly increased rate of gender-based violence during lockdown raises concern and alarm. Women and men are beaten and abused by their partners while being compelled by law to stay inside their homes. They cannot run or escape and are left helpless.
The South African National Defence Force (SANDF) has been deployed in order to enforce lockdown regulations, especially in informal settlements, where strikes and riots have been ongoing. There have been reports that the military have used unreasonable force, brutality, and violence toward people in informal settlements, as well as rubber bullets and tear gas to prevent people from violating lockdown regulations. The military gathers at and guards over informal settlements for all the wrong reasons – to attack as soon as someone is seen in public and who is merely suspected of violating the lockdown regulations. Demanding people to roll in mud and violently assaulting them without reason are clear human rights abuses and undermines the rule of law.
On 15 May, a 79-page judgment was handed down in Khosa and Others v Minister of Defence and Military Veterans and Others (GP) (unreported case no 21512/2020, 15-5-2020) (Fabricius J). The judgment was based on an urgent application relating to lockdown brutality, where one Khosa, was brutalised and murdered by members of the SANDF on 10 April at his home in the Alexandra informal settlement. The founding affidavit states that Khosa was choked, kicked, and slammed against a cement and steel wall for allegedly violating the lockdown regulations. Three hours after the incident, Emergency Services arrived on the scene and declared Khosa dead due to a blunt force head injury.
In this judgment, the court reaffirmed that state brutality in the form of torture or cruel or inhumane treatment is a clear violation of the Constitution, as well as other international human rights law conventions. The court also highlighted the SANDF’s responsibility to protect human rights, act in accordance with the Constitution and to make use of minimum force, if necessary. More significantly, the court held that even though a lockdown is necessary, the public is still entitled to be treated with dignity and respect whether rich or poor. Among other things, the court ordered that the first to fourth respondents (members of the SANDF) be placed on precautionary suspension pending the outcome of disciplinary proceedings.
This judgment serves as a beacon of hope, which reassures and compels the protection of basic human rights, even more so by the SANDF, who should protect the public and abide by the rule of law.
In light of this recent judgment, the SANDF should rather take hands with the various community leaders and implement ‘community-oriented policing/ patrolling’ in order to keep the informal settlements compliant and safe without using unreasonable force and violence.
President Ramaphosa and the government have stepped up and displayed courageous leadership during the national state of disaster. Despite making millions of Rands available that enable various funding packages, such as relief schemes, emergency water and sanitation provision to informal settlements, an increase in the amount of social grants, and the distribution of food parcels across the country, corruption and its key players still loom around every corner, ready to loot whatever comes their way and fill their own pockets.
In his address to the nation on 21 April, President Ramaphosa indicated that a temporary six-month grant will be paid to grant beneficiaries. Child support grant beneficiaries will receive an extra R 300 in May and from June to October, an additional R 500 each month. All other grant beneficiaries will receive an extra R 250 per month for the next six months. In addition, a special COVID-19 Social Relief of Distress grant of R 350 a month for the next six months will be paid to individuals who are currently unemployed and do not receive any other form of social grant or unemployment insurance fund payment. These are indeed noble and noteworthy support measures, but who will keep the President and the Department of Social Development accountable? How will the South African Social Security Agency (SASSA) keep track of the families in dire need and ensure that they are assisted? Who will ensure that these funds are not exploited by corrupt officials and reach those that it is intended to reach?
Evidently, we can have the greatest support and relief measures in place, but in the absence of transparent and accountable governance and good stewardship, these measures are all futile in the fight against COVID-19.
Ultimately, s 7(2) of the Constitution places an obligation on the state – who is the guardian of human rights – to protect human rights. The availability of resources and funding come into play during a pandemic, however, the state should ensure that a balance is achieved between fulfilling human rights for the poor and the rich alike. This means that when regulations and measures were implemented, their effect and practicality on both the poor and the rich should have been evaluated carefully. Insisting that all people stay indoors for weeks on end cannot be seen as equal treatment between a shack dweller sharing a shack with five other family members and a middle-class family spoiled with a double-storey house and ample space for recreational activities and movement. The increasing limitation and violation of human rights in the wake of enforcing COVID-19 measures is simply a reinforcement of government cracks that have been embedded in South Africa’s deep societal imbalances.
SASSA should similarly implement a transparent system to determine, which vulnerable families must be assisted, and to ensure that no family is left out. To this end, it is advisable for them to get in touch with local non-governmental organisations, shelters for the homeless and even churches to gain more information on the whereabouts of people who desperately require assistance. It is likely that there are thousands of people who have neither applied for social grants nor are registered with SASSA and without a transparent system in place, these people are overlooked.
Strict action must be taken against government looters. They should be prosecuted and held accountable for their unlawful conduct. The government should also establish a monitoring committee of sorts, possibly governed by the National Prosecuting Authority, to oversee how, when, and where funding and food parcels are distributed. This should also be communicated to the public.
During a pandemic, government should never lose sight of basic human rights. In fact, it should prioritise the realisation and protection of human rights in such a time even more so. In my view, the Bill of Rights has not been given effect to. A pro-human rights lockdown would have perhaps looked much different –
Tanya Calitz LLB (cum laude) (UFS) LLM (with merit) (University of Edinburgh) is a legal practitioner in Johannesburg.
This article was first published in De Rebus in 2020 (June) DR 9.
