South Africa is a democratic country whereby its citizens are afforded basic human rights as listed in Chapter 2 of the Bill of Rights contained in the Constitution of South Africa Act 108 of 1996. As much as these basic rights are afforded, they can be limited as defined in section 36 of the Constitution commonly known as the limitation clause, which states:
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors…”
It is quite clear that whilst we all enjoy the ambit of our Bill of Rights, we all are called to participate in a National Lockdown whereby the contravention thereof is considered a criminal offence. Basic rights such as the right to freedom of association and the right to cultural and religious communities has been strictly prohibited during this time for a period of 21 days.
The call by the President for social distancing and isolation is in stark contrast to our basic human rights afforded from the face of it.
It is trite law that any rule or decision inconsistent with the Constitution renders it invalid and unconstitutional. The question posed then, is whether the current lockdown and its infringement and limitation of our basic human rights to do things such as go to church, access education in the form of going to school and right to association is unconstitutional? The President is not exempt from the ambits of the Constitution and remains subject to it and required to uphold its precepts.
In declaring the Country, a National Disaster, the President had to do a balancing act in weighing up the basic rights of its citizen versus the national health and wellbeing of each and every one of its citizens amidst the COVID19 pandemic.
The test used to justify the limitation of rights is whether such limitation is justifiable and reasonable. The rights as contained in Chapter 2 of the Constitution is therefore not absolute. In determining the reasonableness of such infringement, we need to turn to the purpose of the National Lockdown. The purpose is unequivocally to safeguard the country and its citizens against the further spread of COVID19 by forced isolation of persons and minimising their interaction and exposure on a day to day basis. This measure is in accordance with the National Institute for Communicable Diseases and the Disaster Management Act implemented to date.
The risk of exposure and the catastrophic effects thereof on a larger scale in light of the COVID19 pandemic justifies the temporary limitation of the exercise of rights such as the freedom of association through social gathering and movement. The current restrictions during this lockdown remains justifiable if its purported purpose is strictly necessary in order to ensure that the public health and order threatened by the COVID virus consuming our nation and world at large is contained and good order once more can be restored.
For further information, please do not hesitate to contact us.
Claire Smidt
claire@bbplaw.attorney
Associate
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