A non-government organisation called Hola Bon Renaissance (HBR) Foundation has approached the Constitutional Court seeking a declaration that the lockdown currently underway in South Africa is unnecessary and unconstitutional.

The HBR Foundation claims President Cyril Ramaphosa’s lockdown declaration violated peoples’ rights to human dignity, freedom of movement, freedom of trade, occupation and profession, and access to healthcare, food and water. In essence, the HBR Foundation is challenging from a human rights point of view the government’s response to Covid-19. 

It will be interesting to know how the Constitutional Court rules in the case.

I am indebted to Human Rights Watch (HRW) for its recently published document “Human Rights Dimensions of Covid-19 Response”, which calls for governments to respect and protect human rights and peoples’ freedoms in their responses to the Covid-19 pandemic. A concern expressed by HRW is that lengthy quarantines and lockdowns may sometimes be indiscriminate and unconstitutional.

Below I consider some of the issues identified in the HRW document, with a specific focus on nine points that South Africa’s Covid-19 response must take into account.

1. Implement lockdown in a manner that does not cause unnecessary panic, pain and hardship for communities

What would you do should you receive news that your child, mother, grandfather or grandmother has died in another province? Would you just sneak-out to go arrange and/or attend the funeral service in a province or another district? Or would you rather be a law-abiding citizen (or resident) and approach a court of law for permission to travel? Last Friday one Mr van Heerden approached the Mpumalanga High Court (Case Number 1079/2020) seeking permission to travel from Mbombela to the Eastern Cape to be with his mother to bury his grandmother.

The application was refused by Acting Judge Henk Roelofse, who while sympathising with Van Heerden said that he cannot grant the order sought because doing so will essentially amount to a court of law authorising Van Heerden to break the law laid down under lockdown regulation. Roelofse did express his displeasure at the lockdown prohibition. Notable is his acknowledgement that the lockdown may cause undesirable hardship.

“The circumstances of this application are extremely upsetting. It shows in the crudest manner the crude effects of the final lockdown Regulations upon a family,” Judge Roelofse noted.

Immediately after the judgment was delivered, I shared the copy with my postgraduate law students at the University of Limpopo. One of them appeared disheartened that Judge Roelofse did not grant the application by Van Heerden as an exceptional case with conditions.

“Many an occasion, legal practitioners stand accused of lacking compassion and humanness, and therefore robbing the law of the essence of humanity. I don’t see this type of judgment doing any justice to debunk such criticisms,” said the student.

The other argument is that the judgment is “heartless” and lacks “ubuntu”.  Judge Roelofse’s order will result in Van Heerden’s mother having to face the Covid-19 death alone. The negative response to the Mbombela High Court judgment in the Van Heerden matter is based, in part, on the fact that the lockdown regulations did not ban funerals. The lockdown only put restrictions, with the number of funeral attendees reduced from 100 to 50 people in total.

What is concerning is the inflexible manner in which the Mpumalanga High Court reached its decision, with Judge Roelofse implying that his hands are tied by the lockdown regulations. I am reminded of the late former Chief Justice Pius Langa who, in a 2006 article published in the Stellenbosch Law Review, said about judges being flexible and using discretion, where possible: “Under a transformative Constitution, judges bear the ultimate responsibility to justify their decisions not only by reference to authority but by reference to ideas and values.” Values such as ubuntu.

Admittedly, the Mpumalanga High Court judgment in the Van Heerden matter demonstrates the difficulty of implementing some provisions of the lockdown laws. To borrow a phrase from an article in Daily Maverick by Pierre de Vos, it amounts to “Lockdown laws: The Good, The Bad and The Vague”.

The HRW rightly calls for lockdown and quarantine regulations during the Covid-19 pandemic interventions to be clear and determinate. 

2. Lockdown measures must be constitutional

UN human rights experts have pleaded that “emergency declarations based on the Covid-19 outbreak should not be used as a basis to target particular groups, minorities or individuals. It should not function as a cover for repressive action under the guise of protecting health … and should not be used simply to quash dissent.”

Yet, Xenophobic responses or an “anti-foreigner” response was exhibited in South Africa within hours or days of the implementation of the national lockdown. Reports are that immigrant spaza-shops were raided by police early last Friday morning in Govan Mbeki, Port Elizabeth, to mitigate the spread of Covid-19. The immigrants were caught between a rock and a hard place.

“The spaza shop owners were confused and scared. They complied but, after the police left, residents demanded they reopen their shops,” reports GroundUp. It was a case of damned if you do open the spaza shop and damned if you don’t for immigrant spaza owners.

“Residents are just forcing us to continue trading after the police have left. And we are still operating in fear of our stock being looted if we don’t listen to the residents,” said one of the owners. The blame for the discriminatory raiding of the spaza shops falls at the feet of the Minister of Small Business Development Khumbudzo Ntshavheni, who is reported to have said that strictly only South African-owned and operated spaza shops would be allowed to trade, citing the need “…to make sure that the quality of food and surety of the quality of products is there”.

We, and our leadership, can do better than this as the Rainbow Nation of Archbishop Emeritus and Nobel Peace Laureate Desmond Tutu.

3. Protect freedom of expression and ensure access to accurate critical information

The South African government remains duty-bound to protect the right to freedom of expression during the lockdown. This right includes: (a) freedom of the press and other media; and (b) freedom to receive or impart information or ideas.

According to HRW, one of the ways of promoting and respecting the right to information during Covid-19 is to “ensure that accurate and up-to-date information about the virus, access to services, service disruptions and other aspects of the response to the outbreak are readily available and accessible to all”.

In South Africa, access to critical information has been undermined by instances of conflicting information. For instance, Minister of Justice Ronald Lamola said spaza shops would be allowed to operate under certain restrictions during the lockdown. However, the message was complicated by Ntshavheni who said foreign-owned spaza shops would not be allowed to trade.

For Pete’s sake! Can we get one message?  The accuracy of information disseminated by the government is important for addressing fake news and “misleading information”.

4. Respect the privacy of Covid-19 patients and confidentiality of medical information

According to HRW, laws and regulations on privacy and protection of personal information remain relevant when the government is handling Covid-19 personal health data. In South Africa, there has already been a threat by Minister of  Health Zweli Mkhize to reveal personal information about Covid-19 patients who do not toe the line for the purpose of public health surveillance, investigation and interventions. Regulation 18 may allow such disclosure.

However, health authorities must be careful and not divulge willy-nilly the health information of Covid-19 infected persons and affected families.

The National Health Act 61 of 2003 provides that all patients have a right to confidentiality. Equally, a person’s rights to privacy are guaranteed in the South African Constitution. The same appeal for caution in disclosing patient information applies to healthcare practitioners. The Health Professions Council of South Africa (HPCSA) Guidelines make it clear that “patients have a right to expect that information about them will be held in confidence by healthcare practitioners”.

Only in certain circumstances specified under Rule 13 of the Ethical Rules of the Health Professions Council of South Africa can such information be revealed. For example, if revealing information is instructed by a court of law; it is in the public interest, or the affected patient gave permission for his or her personal health information to be so disclosed.

5. Protect freedom of movement and of gathering

By Friday 27 March 2020, the South African population was estimated at 59,109,858, with the number expected to rise to  59,308,690 by mid-year. Imagine the logistical and legal nightmare of having to restrict the movement of such a large number of people.

There are already those who argue that the South African lockdown is considered too strict with far-reaching consequences on peoples’ liberties compared to many other countries; and that peoples’ rights may be violated during enforcement of the lockdown.

Reports of police and security forces assaulting citizens and using excessive force to clear streets or control queues at shopping malls send a chill down the spine – batons and rubber bullets have been used against citizens. The country saw a video clip on social media of soldiers beating and kicking a man, with the police acting as spectators.

Unfortunately, these incidents happened despite Ramaphosa having appealed to the security forces to exercise restraint.

“Our people are not hostile. They are not going to be against you. They are not going to resist you. They are going to abide by the regulations that have been issued,” the president said when addressing security forces before lockdown deployment.

We must all be concerned at such ill-treatment of people if we want to avoid another Marikana or Sharpeville massacre as a result of heavy-handed crowd control measures. Likewise, we must stress that acts of incitement to defy the lockdown by the likes of the person who shot a video of himself in Hammanskraal declaring that there is no Covid-19 must be dealt with swiftly. His actions are criminal and irresponsible.

6. Protect people in custody and institutions

In September 2019 the Department of Correctional Services reported 37% overcrowding of South African prisons, with 162,875 prisoners squeezed into 118,572 bed spaces. This situation makes a compelling argument that prisoners are at high risk of contracting Covid-19.

An article by Zia Wasserman (national prisons co-ordinator at Sonke Gender Justice) recommended a near mass release of prisoners to curb the spread of Covid-19. The people Wasserman recommends for release include “older detainees, especially those with underlying health conditions, as well as people serving short sentences for nonviolent crimes”.

This recommendation echoes that of HRW, which calls on governments to “consider reducing their populations through appropriate supervised or early release of the low-risk category of detainees including, for example, those whose scheduled release may be soon, those who are in pre-trial detention for non-violent and lesser offences or whose continued detention is similarly unnecessary or not justified”. 

I do not agree with the mass release of prisoners without consequences. What needs to be done first is to have all prisoners tested for Covid-19 and to make sure they remain negative. The authorities must ensure that these detention places are properly run and resources and “inmates” or “residents” are exposed to the minimum required health environment. The condition should be that no prisoner or awaiting trialist who poses an imminent or potential risk to the public shall be released, should the South African government consider release from detention as an appropriate response to Covid-19.

7. Ensure protection of workers

Every employee/worker has the right to a safe working environment. It is thus important that workplaces or employers implement, for instance,  administrative and work practise controls and personal protective equipment (PPE) to minimise the risk of contracting or spreading Covid-19.

On Sunday 29 March, South Africa received shocking reports that a Durban businessman had 14 workers locked in his factory making Covid-19 masks for six days, without the workers themselves being provided with PPEs. The workers were subjected to the worst conditions of employment in violation of the Conditions of Employment, and Occupational and Safety Act. The fact that the workers were manufacturing masks necessary for the control of Covid-19 did not justify their alleged inhumane treatment.

Another cohort of workers who need urgent protection are health sector professionals. The South African Minister of Health has reported growth in the number of healthcare workers and other frontline professionals  — including doctors — infected by Covid-19.

8. Protect the right to education

The right to education is compromised by the Covid-19 outbreak. South African schools and tertiary education institutions are closed, and no one is certain if they will reopen come 16 April.

Going online or using other alternative teaching and assessment methods is one of the options favoured for universities. HRW has recommended the deployment of online learning “to mitigate the immediate impact of lost normal school time”.

Sadly, the same communities whose children are affected by the lockdown and education facilities closures have allowed the theft and vandalism of smart classrooms in their schools.

For example, in 2017 the Gauteng Department of Education (GDE) reported the theft of smart boards installed in the province’s township schools. So morally bankrupt is our society that criminals have even set up school smartclass theft syndicates.

Assuming that the technology is there and kept safe, the digital divide in South Africa is so inescapable that not every child in South Africa will be able to access online technology.  The reality is that our communities remain classified along the lines of the poor, needy, the corrupt and the super-rich.

9. Guard against GBV and Covid-19’s disproportionate impact on women and girls

HRW has appealed to authorities to “take steps to mitigate gendered impacts and ensure that responses do not perpetuate gender inequity”. The same call has been made in South Africa, with fear of increased GBV and suppression of women during the pandemic.

The fear is not unfounded. For example, a report by UKAid reveals that domestic violence has increased in China since Covid-19 because the government’s response has “curtailed access to support services for survivors, particularly in the health, police and justice sector”.

Frontline health workers, many women, are reportedly also subjected to violence and abuse. UKAid also reports that “in the US, there have been reports of more coercive and violent behaviour against street-based sex workers” since the Covid-19 outbreak.

It is therefore important that programmes and campaigns against GBV continue – even if virtually. We are reminded by HRW that governments must “ensure public awareness campaigns address how victims of domestic violence can access services and should ensure that services are available to all victims of domestic violence, including those living in areas under movement restrictions or under quarantine and those infected with COVID-19”.

In conclusion: The worst fear at the moment is the erosion of human rights and freedoms, and the denial of justice (or access to courts). DM