Gender-based violence during COVID-19: a human rights violation

Gender-based violence during COVID-19: a human rights violation

By Siyabonga Zondi and Sinothile Zondi (Durban interns)

 

The Universal Declaration of Human Rights (UDHR), the founding document of the United Nations, states that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

There is now near-universal consensus that all individuals are entitled to certain basic rights under any circumstance. Human rights are the articulation of the need for justice, tolerance, mutual respect and human dignity in all of our activity. To protect human rights is to ensure that people receive decent humane treatment. To violate the most basic rights on the other hand, is to deny individuals their fundamental moral entitlements. It is, in a sense, to treat them as if they are less than human and undeserving of respect and dignity.

Gender-based violence is a profound human rights violation, which is a common and widespread problem in South Africa, which disproportionately affects women and girls. It is a crisis that is tearing our society apart and affects every community in the country. It increases particularly during any type of emergency, whether it be an economic crisis, a breakout of conflict or a disease.

We have seen a significant increase in the number of gender-based violence cases since the country began the nationwide lockdown in response to the COVID-19 pandemic. Pre-existing social norms and inequalities, economic and social stress caused by the pandemic, coupled with restricted movement and social isolation measures, have led to an exponential increase in gender-based violence cases.

Inasmuch as gender-based violence does not begin with disasters like COVID-19, the chaos and instability this has caused have left women and girls more vulnerable than ever. The mass effort to save lives has put one vulnerable group at risk. Women and children who live with abusers have no escape. The pandemic makes it hard for this vulnerable group and being able to separate them from people who abuse them and provide them with resources that can help has been a challenge.

Publicising abuse is a way to demand justice for the victims, by pressuring governments to respond and to hold perpetrators accountable. Publicising abuse raises awareness in society and can mobilise support for the victims in making a complaint. The level of detail in the documentation can affect the ability of the supporting agencies to accept and act on a complaint and should be as comprehensive as possible. The effectiveness of human rights as a tool depends on the accuracy and comprehensiveness of the evidence gathered. It can contribute to educating and organising as well as advocating at a political or legal level.

Government leaders have been brought down through documentation of human rights violations; the power of the process, both for the victim and the perpetrator, should not be underestimated. Documentation can also be a way to secure assistance, relief and rehabilitation for victims. Documentation can help to mobilise international attention on an issue and push the government to act as a result. Accurate statistics are difficult to obtain for many reasons including the fact that most incidents of gender-based violence are not reported. It is however evident that our country has particularly high rates of gender-based violence. This is more so when the media brings attention to some of the more heinous acts of violence against women.

One of the most devastating cases which left the whole country in shock was that of 21 year-old Tshegofatsho Pule who was eight months pregnant. She was found hanging from a tree in Roodepoort, Johannesburg with multiple stab wounds to the chest. Another case was in Khayelitsha, which is one of the biggest townships in Cape Town, where 34 year old Sbongiseni Gabadu’s decomposing body was found chopped up and stuffed inside a sports bag.

Documentation can be an empowering process if it involves sharing ownership of information with the affected group, and helps them understand the political, economic or other circumstances that allow violations to happen. Often, victims of rights violations who belong to a highly stigmatised or persecuted group do not recognise that a rights violation has happened to them or that certain treatment is wrong. Some do not believe they have any rights at all. In addition to providing a historical record of abuse, community or peer driven documentation brings ordinary people into a broader movement against injustice.

The Constitution states that the fundamental rights of all South Africans will be respected and protected. President Cyril Ramaphosa, in an address to the country, highlighted the fact that gender-based violence should be considered as a second pandemic in the country and taken as seriously as the coronavirus. This has not been the first time that there has been a rapid surge in incidents of gender-based violence during a lockdown situation. The President reiterated the need to treat the fight against gender-based violence as a war and women’s rights campaigners have welcomed the greater focus on violence against women.

Click here for our complete September 2020 Newsletter

Can an administrator’s decision to refuse asylum be substituted by an order of the High Court?

Can an administrator’s decision to refuse asylum be substituted by an order of the High Court?

By Obakeng Phatshwane (Candidate Attorney, Fasken)

 

Given the impact of COVID 19 and the plight of asylum seekers, this decision remains crucial for those seeking asylum. The substitution by a court of an administrator’s decision2 in granting asylum is a remedy that is only available in exceptional cases.

In the case of Kalisa v Chairperson, Refugee Appeal Board and others 3(“the Kalisa case”) the court had to decide whether it could substitute an administrator’s decision and whether such substitution would be just and equitable.

The Kalisa case involved a Burundian national who had applied to the Refugee Status Determination Officer (RSDO) for asylum. The application had been rejected, and the applicant’s appeal to the Refugee Appeal Board (RAB) dismissed. The applicant applied to the High Court to review the RAB’s decision, and to substitute it with a grant of asylum.

The court held that substitution was unjustified in that the relevant authority was better equipped to investigate and determine certain aspects of the application and that the court was neither in as good a position as the functionary to make a decision, nor was the decision foregone. Therefore the court ordered that the matter be referred back to the administrator, and that the applicant be allowed to make a new application for asylum.

The primary factors taken into consideration by the court when substituting an administrator’s decision were:

  • whether the court is in as good a position as the administrator to make the decision; and
  • whether the decision of the administrator was a foregone conclusion.

In respect of the former enquiry, the court must be satisfied, on the basis of the evidence presented to it, or by virtue of its institutional competency, that granting such substitution order would comply with the constitutional requirements of lawfulness, reasonableness and procedural fairness.
Where a court is not in as good a position than the administrator but the administrator’s bias or incompetence renders it unjust to refer the matter back to such administrator for consideration, a court might be required to devise a remedy not identified in terms of section 8 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
Other secondary factors to be considered include delay, bias or incompetence on the administrator’s part. In asylum matters the prejudicial consequences of a delay would justify the granting of asylum only where it is sufficiently clear that the applicant qualifies for refugee status.4 The onus is on the applicant to furnish sufficient evidence to the court that he/she qualifies for refugee status.

Legal Position
The judgement is an indication that the court would be unlikely to step into the shoes of the administrator or elect to substitute a decision of an administrator unless exceptional circumstances exist requiring the court to do so. An applicant looking to succeed with an application for a substitution order must in this instance furnish sufficient evidence indicative of the existence of exceptional circumstances, failure of which the court will refer the matter back to the administrator for consideration.

 

Click here for our complete August 2020 Newsletter

A workplace away from the workplace: A reflection on the supporting role of an organisation

A workplace away from the workplace: A reflection on the supporting role of an organisation

By Mattew December, Legal Intern, Cape Town

 

“What do you think the organisation can do for you and your personal development?” This was the stand-out question for me during my interview with ProBono.Org in Cape Town during December 2019. I thought for a second, and the answer I gave was that I had a clear indication that I wanted to be a part of this special organisation.

On 16 March 2020, it was the beginning of a new week and panic hit due to the novel coronavirus hitting South African shores at an unprecedented high. The uncertainty was visible on everyone’s faces and management engaged with staff about the fear of consulting with clients coming from all over the city and its outskirts. The support received was unbelievable as we were reassured that our health comes first and that measures would be put in place as soon as possible to protect us in the office.

After consultation with head office, management informed us that we would be working from home from 23 March and that our office would be closed indefinitely. The leadership shown by the management of the organisation was proactive and commendable as similar measures were then adopted as national policy when President Cyril Ramaphosa called a national lockdown in line with the Disaster Management Act. This illustrated the organisation’s commitment to the wellbeing of its staff.

Presently, the whole organisation has a WhatsApp support group and various support channels have been introduced at office and national level to assist every employee during these trying and uncertain times. The organisation has also shown foresight in rapidly introducing a model by which employees are able to work from home and still earn an income. It is no secret that there is presently no obligation for employers to pay salaries as staff are out of office, however ProBono.Org has continued to remunerate its employees on time since the lockdown period was declared.

It is undoubtedly a huge challenge to operate during these times, especially considering the nature of the organisation’s work and its limited resources. However, the model adopted by ProBono.Org has ensured that the organisation is able to continue with its mandate and facilitate access to justice for society’s marginalised. This is especially important as ProBono.Org has to convince donors and potential donors that the organisation is making an impact. This basically means that statistics are very important. Although the organisation offers assistance via email and WhatsApp, the majority of clients were people that visited the offices for consultations. This has of course been impossible during the lockdown, however, the organisation has introduced a hotline where people may seek assistance and the telephone and email lines continue to be operative.

The COVID-19 pandemic has had an unprecedented effect on almost every facet of society. The invaluable role that ProBono.Org has played in the lives and wellbeing of its employees could surely be an example to other organisations on how to boost staff morale and maintain an effective level of productivity during this time. Everyone has a role to play in countering the effects of the pandemic and lockdown and as an employer ProBono.Org has risen to the occasion and provided proactive, decisive and supportive leadership. The role the organisation has played in supporting its staff is invaluable and one can only be grateful in knowing that it has been a privilege being part of such an incredible team.

 

 

Click here for our complete July 2020 Newsletter

My Lockdown Experience

By Sinothile Zondi, Durban intern

 

I live in Effigham, a suburb of Durban North, with my sister. We each have a young child. During the lockdown we have both been working from home. My suburb consists of mostly formal housing, with some shacks on the outskirts. Shack dwellers come into the suburb for shopping and work. There is quite a large population of foreign nationals who are entrepreneurs. Most of the locals are friendly towards them.

With the lockdown it was hard to shop as there are not many shops in the area. One day I was walking to buy bread and was stopped by a policeman who asked why I was walking so far from home. Generally to go shopping I have to take a taxi to central Durban which takes about 40 minutes or more. Last week I had to explain to a taxi driver that he was not allowed to carry a full load of passengers. There were 15 people in the taxi so I decided to get out. The passengers were wearing masks but the driver wore his around his neck. They only seem to put the mask on when they see the police. There was no sanitiser available when boarding the taxi and I used my own.

There is a clinic and a community feeding scheme at the library, which operates of a container. People go and collect bread and food. I have seen the council handing out food parcels. Once when I was going to buy bread during Level 5 they called informal residents to the container. No one wore masks and there were no hand sanitisers. Over 50 people were crowding around with their children and fighting over the food and it was chaos, with no social distancing being observed.

I feel unsafe in my community because of this behaviour. I try to go out as seldom as possible. I don’t know if there are any infections in my community. Testing in the area has been announced but I don’t know if any testing has been done.

The stores where we shop do observe the regulations. They provide sanitisers, keep numbers down and insist on people wearing masks. The local church has been handing out food parcels door to door which is very encouraging. There is a problem of hunger in the area but homelessness is not very obvious here. Most homeless people shelter in town. The problems are mostly in the informal settlements where there is a lack of water and formal toilets.

 

Click here for our complete June 2020 Newsletter

Demystifying “Draconian, Irrational and Infringement of Privacy” Laws

Demystifying “Draconian, Irrational and Infringement of Privacy” Laws

This month’s guest is Lebogang George, a legal consultant specialising in Information, Communications and Technology (ICT) Law, IT Governance as well as Data Protection and Privacy Law. Her passion for Human Rights stems from her first job as a Legal Intern at ProBono. Org from 2011 to 2012.

Pandemics have a way of elevating economic inequalities and revealing the injustices occurring in marginalised communities. There is no doubt that what COVID-19 has revealed, amongst other things, is how it is disproportionately impacting disadvantaged communities. While laws and regulations are put in place to mitigate the damage that the pandemic will cause and to protect and save as many lives as possible, there are some laws and regulations that seem arbitrary, counterintuitive and even draconian. For the most part, these laws seem irrational and infringing on certain rights simply because they are not explained thoroughly, and information is not easily accessible and elucidated to those that it impacts the most. What this article hopes to achieve is to demystify the so-called “draconian, irrational and infringement of privacy” laws brought about as a reaction to the COVID-19 pandemic.

As the spread of COVID-19 became more rampant it was apparent that the Government had to act decisively in curbing the spread of the virus, especially in the more vulnerable and marginalised communities. Managing the spread of the virus and flattening the curve meant the introduction of contact tracing, another uncharted legal territory that had to be resorted to. In the amended Disaster Management Regulations gazetted in April 2020, contact tracing would be used to trace people who are known or reasonably suspected to have come into contact with anyone known or reasonably suspected to have contracted COVID-19. The Disaster Management Regulations would allow the Government to set up a COVID-19 tracing database which would assist the Department of Health to track persons who are reasonably suspected to have come into contact with Covid-19 infected persons. This meant that information such as identity numbers, passport numbers, full names, phone numbers, physical residential addresses, COVID-19 test results and full details of persons they had come into contact with would be needed and therefore collected. This also meant that Government would need to galvanise mobile networks to assist them as the use of cell phone data would be imperative in contact tracing. The sharing of location data would allow the location of data subjects to be traced, electronic communication service providers would process collected data for the government to use for the purpose of tracking subjects to combat the spread of COVID-19.

It is important to note and reiterate that there are laws and regulations that have come into effect specifically to control and contain the spread of COVID-19. Where, on the face of it, it appears as if these laws exist to limit certain rights, such as the right to privacy and protection of personal information, what is key to also note and reiterate is that the apparent limitation is justified and these laws and regulations are by no means in contravention of any rights. In terms of section 36 (1) of the Constitution of the Republic of South Africa, No. 108 of 1996 the general requirement for the limitation of any right is that it may be limited only in terms of the 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”.

While prima facie it may seem as though contact tracing is in contravention of the Protection of Personal Information Act, No. 4 of 2013 known as POPIA, the Information Regulator, who is the authority appointed to enforce and ensure compliance with POPIA once the Act becomes fully effective, issued a Guidance Note on 3 April 2020 to assure the public that contact tracing and the Disaster Management Regulations were not in conflict with POPIA and that public and private bodies, in the attempt to contain and reduce the spread of COVID-19, should be proactive in their compliance with POPIA when processing personal information of data subjects who have tested or are infected with COVID-19 or have been in contact with such data subjects.

Below are some salient questions and points with regards to contact tracing and POPIA.

    1. Your rights in terms of POPIA
      The right of privacy is enshrined in the Constitution which expressly states that everyone has the right to privacy. POPIA is aimed at facilitating the protection of privacy. The lawful processing and collecting as well as sharing of personal information is regulated by POPIA and persons collecting, processing and sharing any personal information will need to seek consent first from the data subject i.e. the person to whom the personal information relates.
      Sections 9 – 11 of POPIA go further to protect the data subject’s rights by providing conditions for processing personal information, which are that it must be lawful, minimal – in that it must only be collected for the purpose it is supposed to serve – and the collection and processing of such personal information is justified and meets the objectives for which it was collected in the first place.
    2. Have your rights changed due to COVID-19 and the Disaster Management Act Regulations?
      This is important. The answer is, No. The Disaster Management Act regulations have not impacted on the privacy of the South African people, their rights have not been infringed or taken away. Where processing and collection of personal information is imposed by law and/or protects the legitimate interest of the data subject or where the processing and collection of personal information is necessary for performance of a public law duty by a public body, or processing is necessary for pursuing legitimate interests, the collection and processing is lawful and justified. The objective of contact tracing is to prevent a serious and imminent threat to public safety and/or a public health, health of data subject or other individuals that the data subject has come into contact with. Contact tracing therefore passes the lawful, minimality, justification and legitimate test provided for in POPIA.Consent is therefore not necessary where the collection of data and personal information is to detect, contain and prevent the spread of COVID-19, where the collection of personal information is done to exercise public duty to pursue a legitimate purpose – that of curbing the spread of COVID-19 and saving lives. Having said that, under the Guidance Note issued by the Information Regulator in April, consent in the context of COVID-19 cannot be withheld by a data subject.
    3. The Impact of contact tracing on your rights in terms of POPIA.
      Covid-19 has not impacted on the rights of any individual in terms of POPIA. It has only limited them in a reasonable and justifiable manner. When personal information is collected from a data subject it must still meet the requirements of POPIA, in that it must be lawful, justifiable, reasonable, there is a legitimate interest, minimality, and the purpose has to be clearly specified. The collection of personal information is for purposes of contact tracing which tracing seeks to detect, contain and prevent the spread of COVID-19 as well as prevent deaths and save lives.Personal information and data collection for purposes of contact tracing must not be retained longer than authorised to achieve the purpose of detecting, containing and preventing the spread of COVID-19 unless the information required is for historical, statistical or research purposes and adequate safeguards are in place. Further, destruction and deletion must be done in a manner that prevents reconstruction.
    4. What are your personal information and data privacy rights post-level 4?
      As the country cautiously enters into level 3 and more industries, churches and places of work reopen as well as schools, contact tracing will become more important and necessary. A reopening of most businesses means more interactions and increased movement, which is how the virus spreads. Contact tracing will be used to detect and record these movements. Employers will be allowed to request specific information on the health status of an employee in the context of COVID-19 as the movement of an employee under level 3 will no longer be limited to grocery stores for essentials but will be increased to churches and other places. In terms of the Guidance Note an employee can be forced to undergo testing, the data subject cannot refuse to give consent and a person who has tested positive has a duty to disclose his/her status for the safety of others and for the purpose of enabling the government to take appropriate measures to address, combat and prevent the spread COVID-19.

    We are living in unprecedented times and every day we are entering into uncharted waters. There will be laws that are confusing, that look like they are designed to infringe on our rights to freedom and to privacy. It falls upon us as legal practitioners to demystify these laws and where in fact they infringe upon human rights or have the potential to infringe on human rights and/or on the rights to privacy, we must challenge them in a responsible manner, bearing in mind the balancing act between constitutional rights and saving and preserving life.

     

    Click here for our complete June 2020 Newsletter

De Doorns Case Study

De Doorns Case Study

By Mattew December, Legal Intern – Cape Town

 

De Doorns is a small agricultural town in the heart of the Hex River Valley, 30 kilometers outside Worcester in the Western Cape. The town is renowned as the country’s biggest exporter of table grapes and a large percentage of the population consists of seasonal farmworkers.

The novel coronavirus pandemic struck South Africa during the peak of the local table grape season. The majority of people were working in the refrigerated storerooms and that was certainly a big concern as it is well known that the virus spreads rapidly in cold conditions.

Critical Agriculture Commodities

After the President announced the lockdown, certain sectors were identified as essential services and were required to operate during the lockdown; the agriculture sector having been identified as one of them. The minister published regulations for the operation of the sector and further stated that only those working with “critical agriculture commodities” would be allowed to work during the lockdown.

However, the farmworkers in De Doorns continued working. This was very confusing as it is unlikely that anyone would consider table grapes as “critical agriculture commodities”. This means that financial and socio-economic factors were considered in the decision to allow De Doorns’ seasonal farmworkers to continue working. The fact that people were going to be unemployed from June to September (as is the case every year) together with the fact that a large percentage of the crop was earmarked for export, weighed heavily on the side of operation.

However, it could also be seen as an irresponsible decision by the labour department to allow De Doorns farmworkers to continue working given the fact that social distancing is basically impossible while working in those refrigerated cold rooms.

Community compliance with regulations

The proximity of De Doorns’ township to the town centre is barely 20 metres, however the difference in people’s adherence is shockingly clear.

One example of this is the manner in which the rules on social distancing, wearing of masks and sanitizers were enforced in the town centre and the total disregard thereto in the township where people were collecting food parcels. It seems as if people need to be policed into adhering to the regulations which is really unfortunate as the number of confirmed cases continues to rise in the broader Breede Valley region (of which De Doorns forms part) and the highest concentration of people live in the township, more specifically in the informal settlement called “Lubisi”.

Even more concerning is the fact that Lubisi was the first area where a confirmed case was reported. This area is largely occupied by foreign nationals. This further raises more red flags as many of the people living here are undocumented and often shy away from seeking public medical assistance.

The rise of the black market

The lockdown came with a ban on the sale of cigarettes and alcohol. This has created an opportunity for illegal and informal traders. The history of De Doorns, like any other small farming town in the Western Cape, has a legacy of the “dop system” where people were partly compensated with alcohol. Therefore, the town has a problem with alcohol and drug abuse. The fact that alcohol and tobacco are not readily available has given birth to a new market of illegal cigarettes being sold at exorbitant prices and the large sale and consumption of home brewed beer.

The demand has become so big that these traders are now charging up to five or six times the price they would normally charge for a packet of illegal cigarettes and are reporting record profits of up to R6,000 for a 50 litre bucket of home-made beer.

This in turn poses another risk for people as indulgence in the abovementioned substances also undermines the lockdown regulations and creates an environment where the virus can spread more rapidly.

Conclusion

My personal observation in De Doorns has been that the biggest enabler for the virus to spread are the people themselves. Lockdown is a myth in this town, and everyone seems to continue with business as usual, with others using this trying time as an opportunity to make money. One can only hope that lockdown regulations are properly enforced as the circumstances in De Doorns, particularly the working conditions of the seasonal farmworkers, are those in which a virus like COVID-19 can rapidly spread and wreak havoc.

 

Click here for our complete May 2020 Newsletter

Life in White City, Jabavu, Soweto

Life in White City, Jabavu, Soweto

By Nkuli Zuke, Receptionist, Johannesburg

 

My experience with this lockdown in my area is traumatic with the number of people who are dying. I worry about how far the infections will escalate and whether there will be a cure anytime soon. I have not experienced much testing in the township and I wonder if testing will ever reach us. There are long queues when we go to buy groceries and stocks are sometimes low. On the issue of food parcels, so many people are in need and have registered to receive parcels but these have not been delivered and I am concerned about how hard it is for people to be locked in their houses without any food.

 

Click here for our complete May 2020 Newsletter

The dangers of Illegal home brewed alcohol

The dangers of Illegal home brewed alcohol

By Fina Diba, data capturer, Johannesburg

I live in Thokoza on the East Rand. It concerns me that our president is trying to keep us safe but the community doesn’t seem to realise that there is a reason for alcohol being banned during the lockdown as people often misbehave when they are drunk. Now that they cannot buy alcohol, many people have started to brew their own illegally. I am worried that this could be very dangerous and will affect their health. A two-litre bottle of this brew costs R20,00 and I have seen many people consuming it

 

Click here for our complete May 2020 Newsletter

The alcohol ban: was the decision to ban the sale of alcohol administratively fair?

The alcohol ban: was the decision to ban the sale of alcohol administratively fair?

By: Mattew December, Legal Intern – Cape Town

Following the global coronavirus outbreak, President Cyril Ramaphosa announced a nationwide lockdown for two weeks from 26 March 2020. This was done in terms of the Disaster Management Act, and the said lockdown was accompanied by a list of regulations meant to limit the spread of the virus. One of the most controversial regulations was a total ban on the sale of alcohol and cigarettes. This led to a public outcry and frustration which in turn resulted in a few liquor stores in and around Cape Town being looted. The regulations were clearly administrative decisions and as such would have to be in line with the Promotion of Administration of Justice Act (PAJA).

According to PAJA, unless the context indicates otherwise ‘administrative action’ means any decision taken, or any failure to take a decision –

(a) by an organ of state, when-

  1. exercising a power in terms of the Constitution or a provincial constitution; or
  2. exercising a public power or performing a public function in terms of any legislation; or

(b) by a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision.

This definition has a range of exceptions which the ban does not seem to fall under.

The overriding principle with regard to an administrative decision that materially and adversely affects the public is that an administrator should hold some sort of public inquiry. However, an administrator may deviate from this principle “if it is reasonable and justifiable in the circumstances.” In determining whether deviation from the overriding principle is justifiable and reasonable, the following must be considered: the objects of the empowering provision; the nature and purpose thereof; the need to take the administrative action; the likely effect of the administrative action; the urgency of taking the administrative action or the urgency of the matter; and the need to promote efficient administration and good governance.

This then means that an inquiry must be made into the objects of the Disaster Management Act in order to conclude whether the regulation on the ban of alcohol was fair in terms of PAJA. The preamble of the Act states that it is aimed at providing for “an integrated and co-ordinated disaster management policy that focuses on preventing or reducing the risk of disasters; mitigating the severity of disasters; emergency preparedness; rapid and effective response to disasters and post-disaster recovery; the establishment of national, provincial and municipal disaster management centres; disaster management volunteers; and matters incidental thereto.”

Another important principle in determining whether an administrative decision is substantively and procedurally fair is that an administrator must give reasons for his/her decision. These reasons must also be logical, they must be for a legitimate purpose and be sensible. In this case, the ban on alcohol sales is said to be a measure to enforce social distancing and to minimise travel and human interaction. This surely makes sense with regard to the other regulations and the nature of the pandemic which led to the lockdown.

In conclusion, many of the arguments against the alcohol ban relate to financial, socio-economic and employment factors. However, the decision to ban all alcohol sales seems to be rational and due consideration appears to have been taken. The Gauteng Liquor Board has threatened to take the matter to court. However, the Presidency has asked the Board to hold off on litigation for the matter to be deliberated by the Executive. It will be interesting to see on which grounds the ban on alcohol sales will be challenged and what factors the court will consider in making a final decision on the matter. As such, the doctrine of separation of powers will also be heavily in the spotlight should the matter go the judicial route.

 

Click here for our complete May 2020 Newsletter

Limitation of Rights and COVID-19

Limitation of Rights and COVID-19

By Nicole Dayanand: Staff attorney, Durban

 

Our Constitution was drafted carefully and with great deliberation. In general, our Constitution is a sophisticated piece of legislation. It provides for a number of aspects, all of which are important, but the most well-known chapter is the Bill of Rights. The Bill of Rights is the foundation of our Democracy in South Africa, with Chapter 2 of the Constitution of the Republic of South Africa, 1996 (the Constitution) providing for a wide range of rights, which include the following: freedom of religion, belief and opinion, freedom of movement and residence, freedom of trade, occupation and profession.

Section 36 of the Constitution however provides for the limitation of rights. This means that in some instances the limitation of a right can be considered lawful. For a limitation to be lawful in terms of Section 36 of the Constitution, the requirements are:

  • The limitation must apply to all people and not just one person or group;
  • The limitation must be reasonable and justifiable in an open and democratic society;
  • The limitation must be based on human dignity, equality and freedom.

Section 36 of the Constitution further specifically provides that when limiting rights all relevant factors must be taken into account, including:

  • The nature of the right;
  • The importance of the purpose of the limitation;
  • The nature and extent of the limitation;
  • The relation between the limitation and its purpose; and
  • Less restrictive means to achieve the purpose.

On 15 March 2020, the President declared a National State of Disaster and subsequently announced a nationwide lockdown for 21 days starting on 26 March 2020. In implementing the lockdown, regulations were put in place for the duration of the lockdown. These regulations limit some basic rights and freedoms as per Section 27(2) of the National Disaster Act 57 of 2002 (the Act). This section states that the President may make regulations concerning inter alia the regulation of traffic, the regulation of movement of persons and goods, the control and occupancy of premises and the suspension or limitation of the sale of alcoholic beverages.

Some examples of the regulations that were implemented are listed below:

  • For the period of the lockdown every person is confined to his or her residence, unless strictly for the purpose of performing an essential service, obtaining an essential good, collecting a social grant or seeking medical attention;
  • All businesses and other entities shall cease operation during the lockdown, save for any business or entity involved in the manufacturing, supply or provision of an essential service;
  • A maximum of fifty people are allowed at a funeral. Burials or cremations within 24 hours require a permit from the police with a sworn affidavit and supporting letter from a cultural/religious leader;
  • The movement of children between co-parents is only permitted if the parent are in possession of a Court Order, a registered parenting plan and a certified birth certificate of the child;
  • The sale of clothing and essential goods for the care of toddlers up to 36 months is permitted;
  • No person may be evicted from their place of residence for the duration of the lockdown;
  • Grocery stores, wholesale markets, spaza/tuck shops and vegetable sellers providing essential goods may trade with written permission from their municipal authorities.

Section 27(3)(a) of the Act states that these regulations must only be exercised to the extent that it is necessary for the purposes of assisting and protecting the public.

In response to the nationwide lockdown, an NGO called The Hola Bon Renaissance Foundation brought an urgent application to the Constitutional Court to declare the lockdown unconstitutional (CCT 52/20). The Applicant submitted that, by declaring a lockdown, the President is violating the Constitutional rights of South African citizens including the right to freedom of movement, healthcare and food and that this was an abuse of power. The issue faced by the Court was whether the President acted unconstitutionally by declaring a nationwide lockdown due to the COVID-19 pandemic.

The Constitutional Court dismissed the application and refused to award costs to the NGO. This decision by the Constitutional Court was based on the fact that Section 36 of the Constitution clearly states that our rights in the Bill of Rights may be limited under certain circumstances. Section 27 (2) and (3) of the Disaster Management Act further supports the Court’s decision. The President has acted in terms of Section 27(2) by limiting movement and trade and only allowing essential services to carry on business. The lockdown protects the public against the COVID-19 virus and has proven to slow down the increasing rate of infection. At its core our Constitution purports to protect the people of this nation and the President’s decision to declare a nation-wide lockdown was made with that core value in mind.

 

Click here for our complete May 2020 Newsletter

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