The South African government could take several drastic steps to try to slow the spread of the Covid-19 in the country. While it is important for the government to continue to provide clear, consistent, and accurate information about the virus to educate and inform the public, this alone will not be sufficient. Other measures that will severely limit the rights of individuals may also be necessary.
First, the government could limit or prohibit inward travel to South Africa from identified hotspots – something done by countries like the United States when it was far too late to have a real impact. Second, it could aggressively roll out free testing, and the tracing of all individuals who have been in contact with individuals who tested positive. Third, those with the virus could be quarantined and those who came into contact with somebody who tested positive could be isolated. To limit physical contact between people, the government could also ban public events and close social spaces like bars, taverns, churches and restaurants.
It is important to note that it would not be permissible for the government to refuse entry into the country to any South African citizen. Section 21(3) of the Bill of Rights specifically states that “every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.” Unlike most of the other rights in the Bill of Rights, this right only applies to citizens. While the government may place citizens who travelled abroad in quarantine (usually for a period of 14 days), it is inconceivable that an absolute ban on the entry of South African citizens from high-risk countries would be found to be constitutionally compliant.
Testing, quarantine and isolation for notifiable diseases are provided for by Regulations relating to the surveillance and the control of notifiable medical conditions issued by the Minister of Health in 2017 in terms of the National Health Act. It is important to note that section 2(2) of the Regulations require the government to take account of “full respect for the dignity, confidentiality, human rights and fundamental freedoms of persons” when implementing these measures.
Section 14 of the Regulations requires certain individuals to be tested, medically examined, treated, isolated or quarantined. This applies to both individuals who carry the virus and those who came into contact with individuals who carry the virus. The section also imposes obligations on those who carry the virus to provide all necessary information required to enable physical or virtual monitoring during the disease.
What happens if an individual who is a clinical or laboratory confirmed case, carrier or contact of a notifiable medical condition refuses to be tested, treated, isolated or quarantined? Section 15 of the Regulations allows the head of a provincial health department to approach the High Court for an appropriate court order to force the person to comply. This means, in effect, that individuals cannot opt-out of testing, isolation and quarantine measures aimed at containing the spread of the disease.
Some experts point out that one of the ways in which Covid-19 was spread, was from one member of the household to another. This means that isolation may work best if a patient is isolated away from his or her family and loved ones. Such isolation would have a serious impact on the lives of those affected, but the available evidence suggests that it would not be a disproportionate response and may constitute a justifiable limitation on the rights of those concerned.
Because of fear and ignorance, there is a great danger that individuals who are isolated or quarantined will be stigmatised and scapegoated, and that this might lead to vigilantism. It is therefore important to note that section 18 of the Regulations protects the confidentiality of patients and other affected persons. The section states:
“(1) Information concerning a case, contact or a carrier of a notifiable medical condition, including information relating to his or her health status, treatment or stay in a health establishment, is confidential. (2) No person may disclose information contemplated in sub-regulation 18(1) unless (a) the disclosure is for the purposes of public health surveillance, investigations and interventions; or (b) a court order or any law requires that disclosure.”
Over the past week, the organisers of many public events in South Africa voluntarily cancelled their events to limit physical contact between individuals. The government may decide to make this compulsory. However, I could not find specific legislation or regulations regulating the closing of public events to slow or prevent the spread of a communicable disease like Covid-19. (I would be grateful if readers with any additional information on this or any other matter discussed in this article let me know so that I can update the article to improve its accuracy.)
However, I have identified the Emergency Care at Mass Gathering Events Regulations, also issued by the Minister of Health in 2017, as a possible legal mechanism, in effect to ban public events where more than 1,000 people will be present. The Regulation applies to certain events which is defined as “a sporting, entertainment, recreational, religious, cultural, exhibitional or organisational event or similar activity hosted at a stadium, school, venue or along a route or within its precinct”. Its main aim is to ensure that emergency medical services are provided at such events.
The Regulations require the organisers of an event where more than 1,000 people will be present to apply for permission for the event to proceed. Permission may be refused, presumably if the organisers cannot show that the medical services provided would be adequate. Although it places obligations on the organisers of events where less than a 1,000 people will attend, it does not provide for a refusal for the event to go ahead.
These Regulations also do not deal with the myriad other situations in which groups of people congregate in public. A reader has pointed me to the Disaster Management Act that provides extensive powers to deal with “disasters”. Specifically, section 27 of the Act authorises the Minister to make regulations or issue directions or authorise the issue of directions concerning a long list of matters:
“(a) the release of any available resources of the national government, including stores, equipment, vehicles and facilities;
(b) the release of personnel of a national organ of state for the rendering of emergency services;
(c) the implementation of all or any of the provisions of a national disaster management plan that are applicable in the circumstances;
(d) the evacuation to temporary shelters of all or part of the population from the disaster-stricken or threatened area if such action is necessary for the preservation of life;
(e) the regulation of traffic to, from or within the disaster-stricken or threatened area;
(f) the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area;
(g) the control and occupancy of premises in the disaster-stricken or threatened area;
(h) the provision, control or use of temporary emergency accommodation;
(i) the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area;
(j) the maintenance or installation of temporary lines of communication to, from or within the disaster area;
(k) the dissemination of information required for dealing with the disaster;
(l) emergency procurement procedures;
(m) the facilitation of response and post-disaster recovery and rehabilitation;
(n) other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster.”
While specific legislation provides for the closing of some institutions (for example, the National Schools Act allows for the closure of public schools), and while other legal mechanisms such as liquor licencing laws may be relied on to force places to close, there may be legal as well as practical difficulties to enforce closures of all relevant social spaces. If this is correct, emergency legislation or the promulgation of additional regulations may be required. (Again, I ask readers with any additional information to let me know so that I can augment the information provided here.)
In times of crisis, people tend to be more forgiving of a government who imposes authoritarian measures to deal with the crisis. It is therefore not surprising that some people are suggesting that the government declare a state of emergency in terms of section 37 of the Constitution. Section 37(1) states that:
“(1) A state of emergency may be declared only in terms of an Act of Parliament, and only when (a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to restore peace and order.”
While it is conceivable that the current crisis could develop into a “public emergency” as required by the section, it is more difficult to imagine a court confirming that a state of emergency is necessary to “restore peace and order” in a public health emergency. In any event, section 37(2) states that such a state of emergency could only be declared for a period of no more than 21 days (although the National Assembly may extend this, first with a simple majority vote and, the second time, with a 60% majority vote).
During a state of emergency most of the rights contained in the Bill of Rights can be derogated by legislation – but only to the extent that the derogation is strictly required by the emergency. Given the fact that rights may already be limited by law of general application as long as the response is proportionate, the declaration of a state of emergency is not legally required to deal effectively with the potential crisis. In my view, it would, therefore, be a mistake to declare a state of emergency, firstly because it may not be authorised by section 37, secondly because it may not be necessary to deal with the crisis, and thirdly because it will set a bad precedent and may encourage further authoritarian behaviour.
To the extent that existing legislation does not provide the requisite legal authority to allow the government to enforce appropriate physical distancing, Parliament could be called upon to pass such legislation in the next day or two.
In times of a potential health crisis that requires the radical physical distancing of people, there is a danger that citizens turn on one another and scapegoat those perceived to be high risk, clamouring for them to be banished from view. This would be exactly the wrong response. Instead, what is required is the fostering of social solidarity with the understanding that every single person is at risk and every single person can take steps to protect themselves and – more importantly – protect others. DM
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