Legal questions brought by COVID-19

June 1st, 2020
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As South Africa moves to Level 3 of the COVID-19 Risk Adjusted Strategy, the country and indeed the legal profession has had to grapple with the new regulations implemented by government in order to safeguard the population against the spread of COVID-19. As evident from the articles published in this month’s issue of De Rebus, many legal questions have arisen from living the new normal.

Our cover feature article traverses the question whether government took the Bill of Rights into consideration with its reaction to the pandemic. Government has a monumental task of balancing the scales between ensuring that the rights of its citizens are protected, while ensuring that the pandemic does not bring the country’s health system to its knees. In the article ‘Government’s response to COVID-19: Has the Bill of Rights been given effect to?’ legal practitioner, Tanya Calitz, writes: ‘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. Clearly, the Bill of Rights has not been given effect to. A pro-human rights lockdown would have perhaps looked much different –

  • military officials would have acted more humanly;
  • lockdown regulations would have not been equally strict over different parts of the country and would have taken into account personal living conditions of the poor; and
  • the fulfilment of human rights would have been the most important priority to attain’.

The lockdown also brought about changes within the legal system with numerous directives being issued. Legal practitioners have had to ensure that they have access to the latest information pertaining to the courts they serve. One of the feature articles in this issue deals with the three principal ways this pandemic will affect bail proceedings. In the article ‘Three principal ways COVID-19 will affect South African jurisprudence in bail proceedings’ Magistrate Desmond Francke looks at the ways this pandemic will affect bail proceedings, which are:

  • First, as a material change in circumstances justifying a new circumstance or fact to reconsider a bail decision.
  • Second, as a factor affecting public safety under the grounds for detention at s 60(4)(e) of the Criminal Procedure Act 51 of 1977 (CPA), where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.
  • Third, as a factor relevant to public confidence in the administration of justice under the detention at s 60(9) of the CPA, which states that ‘[i]n considering the question in subsection (4) the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody’.

On 24 May, in his speech to move the country to Level 3 of the Risk Adjusted Strategy, President Cyril Ramaphosa said: ‘We have had fruitful discussions with leaders of the interfaith religious community on their proposals for the partial opening of spiritual worship and counselling services subject to certain norms and standards. We have all agreed to have further discussions on this issue and are confident we will find a workable solution.’ Religion is an important part of the lives of many South Africans. In the article ‘Faith in the time of lockdown: A Constitutional right to freedom of religion’, senior magistrate Mohammed Moolla, discusses whether religious bodies have the right to open their places of worship during the nationwide lockdown.

As can be seen above, the June issue is centred around topics pertaining to the COVID-19 pandemic.

See also –

 

Would you like to write for De Rebus?

De Rebus welcomes article contributions in all 11 official languages, especially from legal practitioners. Practitioners and others who wish to submit feature articles, practice notes, case notes, opinion pieces and letters can e-mail their contributions to derebus@derebus.org.za.

The decision on whether to publish a particular submission is that of the De Rebus Editorial Committee, whose decision is final. In general, contributions should be useful or of interest to practising attorneys and must be original and not published elsewhere. For more information, see the ‘Guidelines for articles in De Rebus’ on our website (www.derebus.org.za).

Please note that the word limit is 2000 words.

Upcoming deadlines for article submissions: 22 June and 20 July and 17 August 2020.

This article was first published in De Rebus in 2020 (June) DR 3.

 

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