From Muhammed and others to De Beer and others: striking the balance between public health measures and human rights during Covid-19 era in South Africa

Abstract

This article evaluates the approach by the South African Courts concerning the constitutionality of the declaration of national disaster and the Covid-19 regulations. It sets the tone by evaluating the approach in Kenya in contrast with the South Africa position. A look at the rising tensions between human rights protection and public law informs this exercise. While Kenya uses a precautionary approach to uphold the constitutionality of the Curfew order, South Africa seems to oscillate between the proportionality and the rationality test. A call for clarity in the Court’s reasoning on rationality is proposed.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 European Centre for Disease Prevention and Control COVID 19 situation update worldwide (April 2020). <http/www.ecdc.europa/en/gec>. Accessed 22 June 2020. According to the World Health Organisation, Covid-19 is ‘primarily transmitted from symptomatic people to others who are in close contact through respiratory droplets, by direct contact with infected persons, or by contact with contaminated objects and surfaces’ See <https://bit.ly/2EJS18o>. Accessed 30 July 2020.

2 Minster of Health Zweli Mkhize reports first case of Covid 19 <sacoronavirus.co.za>. Accessed 22 June 2020.

3 Disaster Management Act 57 of 2002, Section 27.

4 Statement by President C. Ramaphosa on measures to combat Covid-19 epidemic (May 2020). <https://bit.ly/35x79PB>. Accessed 22 June 2020.

5 Ibid.

6 Government Gazette 43148, dated 25 March 2020, providing for the Disaster Management Act (57/2002): Regulations made in terms of Section 27(2) by the Minister of Cooperative Governance and Traditional Affairs.

7 Statement by President C. Ramaphosa on measures to combat Covid-19 epidemic (May 2020). <https://bit.ly/35x79PB>. Accessed 22 June 2020.

8 Ibid.

9 Ibid.

10 Ibid.

11 Ibid.

12 Ibid.

13 Update by President C. Ramaphosa on measures to combat Covid-19 epidemic (May 2020). <https://bit.ly/2SBI29e>. Accessed 22 June 2020.

14 SASSA provides food parcel relief (May 2020). <https://bit.ly/3b6xBkg>. Accessed 22 June 2020.

15 Mohamed and Others v President of the Republic of South Africa and Others [2020] ZAGPPHC 120.

16 Reyno De Beer and others v The Minister of Cooperative Governnance and Traditional Affairs [2020] ZAGPPHC 184 (2 June 2020).

17 The Minister of Cooperative Governnance and Traditional Affairs v Reyno De Beer and others [2020] ZAGPPHC 280 (30 June 2020).

18 See decisions available at <ulii.org>. Accessed 31 July 2020. These include Re: British American Tobacco (Uganda) Limited [2020] UGHCCD 133, Re: Stanbic Uganda Holdings Limited [2020] UGHCCD 134, Re: Uganda Institute of Banking and Financial Services [2020] UGHCCD 152.

19 Law Society of Kenya v Hillary Mutyambai Inspector General National Police Service & 4 others; Kenya National Commission on Human Rights & 3 others (Interested Parties) [2020] eKLR.

20 Joan Akoth Ajuang & another v Michael Owuor Osodo the Chief Ukwala Location & 3 others; Law Society of Kenya & another [2020] eKLR .

21 The Constitution of the Republic of South Africa, 1996, Chapter 2.

22 The International Covenant on Civil and Political Rights (1966) 999 UNTS 171 (ICCPR),  The International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, African Charter on Human and Peoples’ Rights OAU Doc. CAB/LEG/67/3 rev. 5, (1982).

23 Convention on the Rights of Persons with Disabilities, (2007) 2515 UNTS 3, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (Sept. 13, 2000) entered into force Nov. 25, 2005. See also African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999.

24 Human Rights Watch ‘Human Rights Dimensions of COVID-19 Response,’ <https://bit.ly/34MRRGn>. Accessed 1 April 2020. See also Committee on Economic, Social and Cultural Rights (2020) ‘Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights’ E/C.12/2020/1.

25 A Zidar ‘WHO International Health Regulations and human rights: from allusions to inclusion’ (2015) 19(4) The International Journal of Human Rights 505–526, 506.

26 The ICCPR (n 22).

27 Ibid., Article 18.

28 General Comment 24 on Article 18 of the ICCPR, CCPR/C/21/Rev.1/Add.6, para 3.

29 Ibid., para 3.

30 Ibid., para 8.

31 Ibid.,, para 8. See the ICCPR (n 22), Article 18(3).

32 Victor Liven v Kazakhstan CCPR Communication No. 2131/2012, para 9.3.

33 Ibid., para 9.4.

34 Articles 17, 18, 19, 21, 22 and 25 of the ICCPR expressly permit some form of restriction or limitation. For instance, freedom from discrimination under article 2 of the ICCPR, freedom from cruel, inhuman or degrading treatment under article 7 of the ICCPR may be limited. In addition, the right of children to special protection (article 24 of the ICCPR and article 3 of the CRC) and freedom from arbitrary interference with home, family, correspondence or reputation privacy (article 17 of the ICCPR) may also be limited.

35 The ICCPR (n 22), Article 19.

36 Ibid., Article 19(3).

37 Human Rights Committee, General Comment No. 34 on Article 19, CCPR/C/GC/34, para 22.

38 Ibid., para 28. In the Human Rights Committee Communication Mukong v Cameroon 458/1991, the HRC underscored that a detention will be considered arbitrary if it is devoid of a legal basis, discriminatory, or completely disproportionate to the legitimate aim to be achieved.

39 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc E/CN.4/1985/4, Annex (1985), https://bit.ly/2VitFbH (accessed 4 April 2020).

40 Ibid., Part I.

41 Ibid., Part II.

42 Ibid., Principles 1–14.

43 Ibid., Principle 25.

44 Ibid., Principle 26.

45 LO Gostin ‘When terrorism threatens health: how far are limitations on personal and ecomonic liberties justified’ (2003) 55 Florida Law Review 1105–1170, 1105.

46 S Diego, S Maxwell ‘Commentary: Limiting Rights and Freedoms in the Context of Ebola and Other Public Health Emergencies: How the Principle of Reciprocity Can Enrich the Application of the Siracusa Principles’ <https://bit.ly/2RNG714>. Accessed 4 April 2020.

47 S Diego, S Maxwell ‘Commentary: Limiting Rights and Freedoms in the Context of Ebola and Other Public Health Emergencies: How the Principle of Reciprocity Can Enrich the Application of the Siracusa Principles’ <https://bit.ly/2RNG714>. Accessed 4 April 2020.

48 This was referred to as the Public Order (State Curfew) Order, Legal Notice No. 36 of 2020.

49 Ibid., Rules 2 and 3. At the writing of this article the order had been extended for an additional 30 days from 27 July 2020. See <https://bit.ly/3i62ZmY>. Accessed 5 August 2020.

50 Ibid., Rules 4 and 5.

51 See press statement <https://bit.ly/2Ddw2q9>. Accessed 5 August 2020.

52 Ibid.

53 Ibid.

54 Ibid.

55 Ibid.

56 World Health Organisation, Dashboard Kenya Covid-19 <https://bit.ly/39XMiaH>. Accessed 5 August 2020.

57 LSK, para 112.

58 LSK, para 129.

59 Coronavirus <https://bit.ly/2EJS18o>. Accessed 30 July 2020.

60 LSK, para 129.

61 LSK, para 130. See also Republic v Minister and 3 others Exparte Langat and 27 Others (Exparte Langat) [2018] eKLR, para 126, 128.

62 LSK, para 131; Exparte Langat para 129.

63 LSK, para 132–133.

64 Joan Akoth Ajuang and another v Micheal Owuor Osodo and Others Siaya High Court Constitutional Petition 1 of 2020, para 1(a)-(f).

65 Okoth, para 173.

66 Okoth, para 173.

67 Okoth, para 178–179.

68 Okoth, para 193.

69 Okoth, para 193.

70 Okoth, para 193.

71 Public Health (Prevention, Control and Suppression of Covid-19) Rules, Legal Notice 49 of 2020, see also Okoth, para 194.

72 Public Health (Prevention, Control and Suppression of Covid-19) Rules, Legal Notice 49 of 2020, Rule 8. Okoth, para 194.

73 Okoth, para 201, 248, 259 and 278.

74 The so-called ‘take it or leave it’ principle.

75 For instance; praying in congregation at mosque. In this they admit that their view is not the majority view of Muslims.

76 These rights are all guaranteed in the Constitution 1996’s Bill of Rights.

77 Minister of Home Affairs v NICRO 2005 (3) SA 280 (CC), para 37.

78 Ibid.

79 Ibid. para 75.

80 Reyno Da Wid De Beer and two Others v the Minister of Cooperative Governance and Traditional Affairs (De Beer) Gauteng High Court Constitutional Application 21542 of 2020, para 3.1.

81 De Beer, para 3.1.

82 De Beer, para 3.1.

83 De Beer, paras 3.5–3.6.

84 Muhammed, paras 75, 77.

85 De Beer, para 4.1–4.6.

86 De Beer, para 4.7.

87 De Beer, para 4.10.

88 De Beer, para 4.13.

89 De Beer, para 6.2–6.4.

90 De Beer, para 7.1–7.2.

91 De Beer, paras 7.2–7.4, 7.9, 7.11 to 7.12. As such.

92 De Beer, para 7.14. Save for Regulations 36, 38, 39 (2)(d) and (e) and 41, the rest of the regulations were declared unconstitutional. The declaration of invalidity was suspended for such a time until the Minister reviewed, amended and published the regulations in the Gazette. See para 9.

93 See for instance, P De Vos ‘Lockdown regulation judgment is flawed, but so is government’s “means justifies the ends” defence’ Daily Marverick 4 June 2020 <https://www.dailymaverick.co.za/opinionista/2020-06-04-lockdown-regulation-judgment-is-flawed-but-so-is-governments-means-justifies-the-ends-defence>. Accessed 22 June 2020. see also, P Balthazar ‘A disturbing example of judicial overreach’ Daily Maverick 3 June 2020 <https://www.dailymaverick.co.za/opinionista/2020-06-03-a-disturbing-example-of-judicial-overreach/>. Accessed 18 June 2020.

94 K Koko, ‘Metro cop, security guard arrested after Vosloorus man killed in lockdown shooting’ The Star Newspaper (March 30, 2020). <http//www.iol.co.za>. Accessed 22 June 2020.

95 The World Embraces Contact-Tracing Technology to Fight Covid-19 (May 2020). <https://bloom.bg/3cKugsT>. Accessed 22 June 2020.

96 See J. Kwen, ‘Why criticism swells around Infectious Diseases Control Bill’ May Business Day Newspaper 10 My 2020. See also Infectious Diseases Bill conceived in public interest – Reps … to be subjected to public hearing before final passage (May 2020). <https://www.nils.gov.ng/news/view/485>. Accessed 22 June 2020.

97 F Vicente and R Benítez ‘Hercules Leaves (But Does Not Abandon) the Forum of Principle: Courts, Judicial Review, and COVID-19’ International Journal of Constitutional Law Blog <http://www.iconnectblog.com/hercules-leaves-but-does-not-abandon-the-forum-of-principle-courts-judicial-review-and-covid-19/>. Accessed 22 June 2020.

98 GJ Annas ‘Blinded by Bioterrorism: Public health and Liberty in the 21st Century’ (2003) 3(5) Health Matrix 33–56, 33.

99 Committee on Economic, Social and Cultural Rights, Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights, E/C.12/2020/1 6 April 2020.

100 African Commission on Human and Peoples’ Rights Press Statement on human rights based effective response to the novel COVID-19 virus in Africa <https://www.achpr.org/pressrelease/detail?id=483>. Accessed 22 June 2020.

101 Constitution (n 21), Section 39.

102 Anonymous ‘Toward a Twenty-First Century Jacobson v Massachusetts’ (2008) 121(7) Harvard Law Review 1820–1841, 1820.

103 REG Upshur ‘Principles for the justification of public health intervention’ (2002) 93(2) Canadian Journal of Public Health 101–103 generally.

104 JM Mann, S Gruskin and GJ Annas (eds) Health and Human Rights.: A reader (Routledge, New York, 1999), pp. 11–18.

105 International covenant on Economic, Social and Cultural Rights (1966) 993 UNTS 3, Article 12.

106 African Charter on the Rights and Welfare of the Child, Article 22 (11 July 1990) CAB/LEG/24.9/49 (1990), Article 16.

107 CESCR General Comment No. 14: The right to Highest Attainable Standard of health (Art. 12), CESCR Document E/C. 12/2000/4 (May 2000). <https://bit.ly/3e0hp6f>. Accessed 22 June 2020.

108 Ibid., para 16.

109 See LO Gostin ‘Public Health Law: Power, duty, Restraint’ (University of California Press and Milbank memorial Fund 2000), 21.

110 Jacobson v Massachusetts 197 US 11 (1905) SC.

111 The ICCPR, (n 22).

112 Siracusa Principles (n 39).

113 Ibid.

114 Ibid. Principle 25.

115 Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC).

116 Ibid. para 36

117 Ibid. para 37.

118 De Beer and Others v Minister of Cooperative Governance and Traditional Affairs (21542/2020) [2020] ZAGPPHC 184 (2 June 2020).

119 Ibid. para 9.3

120 The Guardian ‘Coronavirus: WHO warns against further lifting of lockdown in England <://www.theguardian.com/world/2020/jun/14/who-cautions-against-further-lifting-lockdown-england>. Accessed 22 June 2020.

121 The Minister of Cooperative Governnance and Traditional Affairs v Reyno De Beer and others [2020] ZAGPPHC 280 (30 June 2020).

122 Ibid., para 11.

123 Ibid., para 12.

124 COGTA, para 6.2. The regulations expressly mentioned in paragraphs 7.1–7.10 of the De Beer case were regulations 33(1)(e), 34, 35(1), 35(3), 39(2)(e), 39(2)(m) and 48(2).

Additional information

Notes on contributors

Ebenezer Durojaye

Ebenezer Durojaye is a Professor at the Faculty of Law, University of the Western Cape and the project head of the Socio-Economic Rights Project of the Dullah Omar Institute for Constitutional Law, Governance and Human Rights.

Robert Doya Nanima

Robert Doya Nanima is a Senior Lecturer in the Department of Criminal Justice and Procedure at the Faculty of Law, University of the Western Cape and a research fellow at the Dullah Omar Institute for Constitutional Law, Governance and Human Rights. He works closely with the African Committee of Experts on the Rights and Welfare of the Child on the African Children's Charter Project.