Blog


2020-04-22
How far has our rights been encroached on in the national lockdown?


The President, in his message to the nation on 21 April 2020, acknowledged that the “nation-wide lockdown is having a devastating effect on our economy”, however, he emphasised, “it is nothing compared to the catastrophic human, social and economic cost if the coronavirus could spread among our people unchecked”. 

The statement signifies the difficulty and complexity in making decisions that impact the economy and the lives of citizens.  Not only has the arguments of health versus trade resurfaced, but also the question of how far these rights in the Bill of Rights can be limited or even suspended?  Section 36 of the Constitution allows for rights to be limited.  Section 37 of the Constitution, in the case of a state of emergency, allows for certain rights to be suspended.  A right is limited if a restriction is placed on it and a right is suspended if one is deprived of that right.  A deprivation would entail, not being able to exercise that right.

This brings one to the question of how far rights in the Bill of Rights has been limited or even suspended?

A week into the declaration of a state of national disaster, international travel was restricted, gatherings of more than 100 persons was prohibited, schools and educational institutions was closed, the sale alcohol was restricted and a nation-wide lockdown for 21 days was enforced on 26 March 2020, with the exception of essential services. 

2820 soldiers of the South African National Defence Force (SANDF) was employed to assist the South African Police Services (SAPS).

Lockdown regulations also effectively, suspended the work of the legislature, which primarily has to oversee and hold accountable the executive government and in part, that of the judiciary.  Only urgent cases were allowed to be heard.  This effectively, gave the executive government the power to handle the disaster in terms of the Disaster Management Act of 2003 (DMA).

A constitutional challenge was brought on the eve of lockdown by the Hola Bon Renaissance Foundation (HBR) on the validity of the lockdown regulations on the alleged basis that COVID-19 did not pose a threat to South Africans.  It was further alleged that Africans would self-heal from the virus and that the President was ill-informed and overreacted by imposing the regulations.  The HBR further alleged that the lockdown regulations violated the public’s right to human dignity, freedom of trade, freedom of movement and access to health care[1]. The application was dismissed on the grounds that HBR did not explain why it approached the constitutional court directly and based on its arguments, it did not have a reasonable prospect of success[2].

On 30 March 2020, the President in his message to the nation, emphasised that three South Africans have died from COVID-19.  The Regulations were amended to prohibit gatherings with the exception of funerals.  Movement between provinces was prohibited except where it is an essential service, transportation of cargo or mortal remains and attending a funeral.  At the time of writing this piece, there were calls to limit funerals to only immediate family.  International travel was also prohibited.

The regulations also allowed any Cabinet Minister to issue regulations in terms of the DMA in respect of its mandate and after consultation with the Ministers of Cooperative Governance and Traditional Affairs and Justice and Correctional Services.  These regulations were followed by banning of hot foods. The sale of alcohol and cigarettes was also prohibited.

Two weeks into lockdown, the President in his message to the nation, again emphasised that there is an average of 42% increase of daily new infected cases.  The lockdown was extended by a further two weeks.   A centre was established to keep track of all screening, testing, isolation and hospitalisation.  The centre, through the help of communications companies will be allowed to locate people who have tested positive and who these people have been in contact with.  Potential service providers, including the University of Cape Town, are in the process of developing mobile app, using Bluetooth and an individual’s mobile phone’s geolocation, to track and trace the movements of an individual, covering the two weeks prior to their testing positive for the virus[3]

On 21 April 2020, the President again emphasises that infections are still increasing.  However, that the lifting of lockdown will be phased in terms of plan to stimulate the economy.  The plan will be made known on 23 April 2020.  A letter dated 21 April 2020, shows that the President, in terms of section 201(2)(a) of the Constitution, will employ an additional 73 180 members of the SANDF, for the period 2 April to 26 June 2020.  The purpose is for SANDF to cooperate with the SAPS.

To accommodate the suspension of the freedom to trade, its impact on the economy and citizens, the President has announced various measures of relief, however, the pace of implementation has been too slow compared to the need.  In terms of Unemployment Insurance Fund (UIF) pay-outs, the Minister of Labour acknowledged that the system was not designed to accommodate the increased volumes of requests due to the Covid-19[4]

On the smme front, owners, self-employed and informal trade are frustrated as many applications have not been acknowledged and there is no way of ascertaining the status of applications.  Response from the Department of Small Business and Development (DSBD) is that it’s turnaround time for assessment of applications, are seven workings days.  If applicants have not received feedback from the DSBD, applicants must assume that applications have not complied with requirements and call the DSBD hotline.  However, the hotline is either not working or severely inundated with calls from anxious small business owners?

Rights in the Bill of Rights have been and will continue to be severely limited and, in some instances, even suspended.  It is therefore important that the work of parliament, legislatures and municipal councils resume, whether in virtual format or other, as executive government does not and is not expected to have all the answers.  The legislative arm of government will have to play a vitally crucial role going forward.  It will have to be the voice of the people in the Covid19 crisis.  It will have to take the lead in bringing people together, facilitate effective discussions, that leads to stakeholder buy-in and ultimately find constructive ways forward. 

Our political representatives from all parties must work together to be our voice and give guidance to the executive government.  We are all in this together.  We, the people, are watching and in 12 months’ time, we will be casting our “x”.

 

Zelna Jansen

Chief Executive

Zelna Jansen Consultancy