Minister Patel today provided a draft framework for sectors for the different levels of lockdown, asking for comments and input before the final regulations will be promulgated next Thursday, in time for the shift to level 4.
Level 4 remains a strict lockdown. Social distancing remains important, sanitation and hygiene protocols must still be observed, personal protective equipment must be used. People may only travel to perform or acquire a service that is allowed in terms of the regulations if the service cannot be provided from home.
For agriculture, there are no big changes for the sector specifically (other than that forestry being added). Personal movement remains restricted, with no interprovincial travel allowed, no meeting of family or friends, and no leaving of the house between 8 pm and 5 pm.
The question is, is this Constitutional?
The answer is not that straight forward. Section 27(2)(f) of the Disaster Management Act allows the Minister to make regulations to regulate “the movement of persons and goods to, from or within the disaster-stricken or threatened area”. So it seems to allow for the regulation of movement. This can only be done to give effect to the purpose of the Act, which is the co-ordinated management of disasters.
It is not unusual for legislation to limit fundamental rights. When a fundamental right is infringed, like the freedom of movement is in this case, the next question is whether the limitation of the right can be justified in terms of section 36 of the Constitution – the so-called general limitations clause.
This clause says that a right may only be limited in terms of a law of general application (such as the Disaster Management Act) to the extent that the limitation is reasonable and justifiable in an open and democratic society, based on the values of human dignity, equality and freedom.
The question is, therefore, whether the state can justify a limitation such as this. It is a factual question, where the relation between the limitation and the purpose is important; as is the importance of the purpose of the limitation; the nature and the extent of the limitation and whether there are less restrictive means to achieve the limitation.
So people can argue that the limitation of the freedom of movement is too drastic, it goes too far, and that the State must justify this.
So far the state has explained at the various press conferences what the rationale behind the lockdown rules is: to have as few as possible people in public at any given time, to slow down the spread of the virus. It will, of course, have to provide evidence that these regulations do just that, and that there are not less restrictive means to do it. It is a difficult question to answer in the abstract and without all the information.
In my opinion, the Disaster Management Act allows for the management of disasters but does not allow the extensive infringement of our fundamental rights for the management of the disaster. It is the wrong legislative instrument to use to manage the lockdown - the State of Emergency Act would have been better suited for the purpose.
Be that as it may, if the question about the Constitutionality does end up at court, the courts will be wise to weigh up the interest of the public (and the duty of the state to keep us save) with the individual infringement.
At the beginning stages of the lockdown, the public interest might outweigh this individual interest, because it slowed down the spread and allowed the state some time to prepare for the increase in infections that is sure to follow. It will probably also be justifiable if the infection rate is out of control.
But the longer the lockdown carries on, and the longer these fundamental rights are infringed, the more onerous the state’s obligation to justify the limitations. And while one can have understanding for what the state is trying to do, and allow for errors in the writing of the regulation and the improvisation that happens, we remain a democratic state, where we have to ensure accountability and openness. Also in a pandemic.
Prof Elmien du Plessis -
