By Pierre de Vos
On Wednesday night, minister Nkosazana Dlamini Zuma published new lockdown regulations to deal with the Covid-19 crisis in South Africa. Some of the regulations will apply for the duration of the national state of disaster, while others relate specifically to the level 4 lockdown that commenced on the 1st of May.
Unfortunately, the regulations are not always a model of clarity. It is also not clear how some regulations, in fact, advance the stated goals of the declaration of a national disaster, rendering them vulnerable to constitutional attack.
From a constitutional perspective, arguments about the pros and cons of various lockdown regulations – the ban on the sale of cigarettes, alcohol and (maybe) some books, the introduction of a curfew between 20:00 and 05:00 each day, the ban on exercise except between 06:00 and 09:00 in the mornings, the treatment of informal traders – seem to miss the point.
Legally the question is not whether the sale of certain products is a good or a bad thing. Neither is it relevant that the ban on certain activities might lower the crime rate or, conversely, might embolden members of the criminal underworld. Legally the broad question is whether a specific regulation can be justified, given the stated aims of the declaration of a national disaster.
Of course, it is not only for legal reasons that ministers should provide a proper, fact-based, rational, justification for every lockdown regulation they seek to impose. In a constitutional democracy, voters ultimately hold the government accountable at the ballot box, based on the available information.
While some voters may blindly vote for the governing party (or for another party of their choice), others will make a decision on whether to return the government to power based on the performance of the government.
Some voters may well decide not to support an incumbent party when its government ministers fail to explain monumental decisions like the imposition of a lockdown or fail to advance rational reasons for specific regulations.
Moreover, in a constitutional democracy, it is thankfully not possible effectively to enforce draconian lockdown regulations without the buy-in of the public.
The most effective way to ensure buy-in is by providing members of the public with rational, fact-based, and truthful justifications for specific regulations.
If the government treats the public with respect by providing us with honest, rational, fact-based justifications for the imposition of certain rules, we are more likely to trust the government in return and comply with the stringent restrictions. A failure to provide rational, fact-based, and truthful justifications, will diminish compliance and will, therefore, be counter-productive.
Matters will be made worse if the government decides to use the police and the military to try and impose its will by force in the face of widespread public resistance.
Back to the legal argument. There are at least two grounds on which the validity of lockdown regulations could be challenged. Both these grounds depend to some extent on whether a plausible and truthful justification was provided for a specific regulation. The justification must be related to achieving the purpose of the declaration of a national disaster.
First, to comply with the principle of legality, all regulations must at the very least be rationally related to the stated aims of the declaration of a national disaster.
Recall that the declaration of a national disaster allows for the promulgation of regulations, but only to the extent necessary for the purpose of (a) assisting and protecting the public; (b) providing relief to the public; (c) protecting property; (d) preventing or combating disruption; or (e) dealing with the destructive and other effects of the disaster.
If a regulation is aimed at achieving another purpose altogether (like lowering the crime rate or promoting public health concerns not directly related to the Covid-19 crisis), it would not meet the minimum requirement for validity.
If the regulation is aimed at achieving one of these stated goals, but there is no rational link between what the regulation actually says and its stated purpose, this would also render the regulation invalid.
An absurd example: If a regulation requires members of the public to appear in public wearing purple masks (based on the superstition that purple wards off evil), it will not be rationally related to the aim of slowing or suppressing the spread of Covid-19.
Another example: a regulation that prohibits the sale of KFC because the consumption of large amounts of KFC is fattening and may cause diabetes will not be rationally related to the purpose of slowing or suppressing the spread of Covid-19 and will be invalid.
Second, where a regulation limits one of the rights guaranteed in the Bill of Rights, the regulation will only be constitutionally valid if it is justifiable in terms of the limitation clause. Many of the lockdown regulations do limit rights protected in the Bill of Rights.
The right to equality, dignity, and freedom of movement, and the right to access to food and housing may be of particular importance in the current situation.
In terms of section 36 of the Constitution, 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, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.
Once it is established that a regulation limits a right – as many of the lockdown regulations do – the burden to justify the limitation lies with the government, who must provide both factual material and policy considerations that might justify the limitation. In Moise v Greater Germiston Transitional Local Council the Constitutional Court explained this as follows:
The weighing up exercise is ultimately concerned with the proportional assessment of competing interests but, to the extent that justification rests on factual and/or policy considerations, the party contending for justification must put such material before the Court… If the government wishes to defend the particular enactment, it then has the opportunity – indeed an obligation – to do so. The obligation includes not only the submission of legal argument but the placing before Court of the requisite factual material and policy considerations…. [The] failure by government to submit such data and argument may in appropriate cases tip the scales against it and result in the invalidation of the challenged enactment.
Some of the lockdown regulations are likely to run into legal trouble because the government would not be able to provide a plausible factual basis for the assumptions underlying a regulation. Others may run into trouble because there is no obvious link between the regulation and its stated purpose.
But the most serious problem might well be that the purpose of the lockdown could have been achieved by regulations that infringe on the rights of citizens in a less drastic manner.
As an example, let us look at the curfew which is being imposed from 20:00 each night to 05:00 the next morning. This provision clearly limits the right to freedom of movement guaranteed in section 21 of the Bill of Rights in quite an extreme manner. It is at best unclear that there is a factual basis for this regulation.
Has there been significant movement of people after 20:00 during the lockdown so far? Is there any factual basis that such movement increases the risk of infection?
Furthermore, other regulations already restrict movement in a radical way, so it is not clear why this rule is necessary. To make things worse, no exception is made to allow individuals to go out for household emergencies like the need to buy electricity or airtime.
It would, therefore, be surprising if a court did not find that this provision limits the right to freedom of movement in a manner not justified by section 36.
The same logic applies to the restriction on exercise to the period from 06:00 to 09:00 in the morning. What is the actual purpose of this rule? I would guess it is aimed at making it easier to police the regulations.
But that does not seem to be a good reason to limit people’s right to freedom of movement as mere convenience will never justify a radical limitation on a constitutional right.
Furthermore, there does not seem to be a factual basis for the assumption that more people will get infected if they exercise after 09:00. Unlike other regulations that enforce physical distancing, there does not seem to be any relation between the limitation and the legitimate purpose of slowing down or suppressing the spread of Covid-19.
Less restrictive means – like strictly enforcing the ban on people exercising together – could surely be employed to achieve the same purpose.
Here I am not primarily interested in the two regulations used as examples above. Instead, my aim is to show that it is not constitutionally permitted to impose limits on rights, without having a very good reason to do so.
The aim must always be to impose only such limits that are directly linked to the purpose of the lockdown and to limit rights as little as possible.
We are not living in a state of emergency. Rights have not been suspended.
That means the duty of government ministers to justify the limitation of rights in accordance with the limitation clause have also not been suspended.
Such justifications must not be bizarre and spurious but must be fact-based, rational and truthful.
When no justification is offered, or where the justification appears to be irrational, it erodes trust in government and threatens the efficacy of the lockdown.
It also renders the regulations open to constitutional challenge and invalidation.
Prof Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance, Head: Department of Public Law, at the University of Cape Town
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