By Mark Heywood
South Africa’s first case of COVID-19 was confirmed on March 5th, 2020. Ten days later, on March 15th, 2020, the government utilized the Disaster Management Act (2002) to declare a State of National Disaster. Under this Act, the government set up a National Command Council (NCC) made up of Cabinet Ministers and restricted certain rights necessary to prevent SARS-Cov-2 transmission and “flatten the curve.”
A national lockdown started on March 27th. It was relaxed slightly (to level 4) on May 1st, and was further relaxed (to level 3) on June 1st. The lockdown severely restricted freedom of movement, closed all but essential companies and schools, banned the sale of alcohol and tobacco, and introduced a night-time curfew between 8pm and 5am. By May 22nd, the Minister of Police reported that 230,000 people had been arrested for violating lock-down regulations.
The most affected constitutionally recognized rights are freedom of movement, assembly, and trade. However, on paper at least, care has been taken to ensure that political rights and rights to freedom of expression and association are not limited, and the President has couched the country’s response in terms of the Constitution, particularly the rights to life, dignity and access to health care services. He has also frequently referred to the right to equality and promised that in the post COVID-19 period South Africa will do much more to tackle the inequalities that have been exposed by the coronavirus.
The Disaster Management Act empowers the President to appoint a Cabinet Minister (in this case the Minister of Cooperative Governance and Traditional Affairs) to issue special regulations, which have been released on an almost weekly basis.
Civil society lawyers and activists have analyzed these regulations in an on-line (and regularly updated) guide to the law that identifies the numerous human rights risks and possibilities for abuse created by the regulations. In addition, civil society organizations set up a legal support hotline where violations can be reported, and developed a wide range of human rights resources.
Though many of the ordinary functions of the Courts were suspended from March 27th onward, a number of matters challenging the lawfulness of regulations and their implementation have been brought to courts, sometimes successfully. Political parties and social justice organizations have challenged their rationality and the lawfulness of the NCC.
People have also questioned the deployment of the South African National Defence Force (SANDF) to affected communities. There have been a significant number of cases reported of police and army brutality, including at least 11 deaths. A sucessful legal challenge was brought concerning the murder of Collins Khosa by members of the SANDF in the township of Alexandra in Johannesburg. On May 15th 2020, in a detailed and far-reaching judgment, the Court made it clear that members of the security forces must respect and protect rights to dignity and life, not commit torture, and only resort to minimum force to enforce the law. The SANDF was instructed to publicize the Court’s order, investigate the death properly, warn its members against criminality, and develop a code of conduct “in giving effect to the state of disaster.”
The anti-repression working group of the C-19 People’s Coalition Civil — an alliance of over 300 organizations — and the SA Human Rights Commission have been involved in monitoring cases of police and army brutality. There have also been a number of illegal evictions of people occupying municipal land, despite a legal prohibition on evictions during lockdown. In one instance a court application halted evictions in a community outside Cape Town.
President Ramaphosa has welcomed the use of courts to challenge unlawful conduct.
Unfortunately, South Africa has not respected its legal obligations either in terms of constitutional or international law towards the millions of people who are asylum seekers, refugees and undocumented migrants. People without a South African identity document or permanent residence do not qualify for various forms of social relief (support to small and informal business; a special COVID-19 relief of distress grant; a topped-up Child Support Grant) that were introduced in April 2020. This, too, is the subject of legal challenges.
The lockdown has had a particularly negative effect on women, especially with respect to vulnerability to domestic violence. Until recently, women were not allowed out of homes to report violence; nonetheless, reports of domestic violence have risen sharply.
Another group that is particularly vulnerable during the COVID-19 pandemic is prisoners. Inspecting Judge of Correctional Services Edwin Cameron and the Detention Justice Forum called on the government to release certain categories of prisoners. As a result, in early May, the President announced early parole for certain categories of prisoners, leading to the release of nearly 19,000 inmates.
Measures taken to prevent COVID-19 have also had a profound effect on socio-economic rights, overwhelmingly of black people. There has been a massive increase in food insecurity and hunger (which was already very high). The closure of schools risks disadvantaging a generation of learners and increasing inequality in educational outcomes, and the phased re-opening of schools has been highly contested. There are over 70 water-stressed communities, and generally sanitation and access to water are suboptimal in poor communities. Livelihoods and food systems have been disrupted, and there is growing evidence that other health care services and programs, including HIV, TB, sexual and reproductive health care are being adversely affected.
Nonetheless, until recently there was overwhelming support for the country’s measures to stop the spread of COVID-19. A survey by the Human Sciences Research Council (released on April 26th) revealed high levels of compliance. An informal and undeclared social contract came into effect: although there have been multiple violations of rights, initially there was a high degree of trust in the government response.
However, South Africa is now entering a very difficult phase of the epidemic: infections and deaths are increasing rapidly and chronic hunger, malnutrition, and unemployment are making themselves felt. Reflecting this, there are a growing number of legal challenges to the Constitutionality of regulations issued via the Disaster Management Act. For example, two important judgments in early June struck down certain regulations on grounds of rationality and their impact on fundamental human rights.
Compared to other countries in Southern Africa, South Africa’s response to COVID-19 has mostly respected the rule of law. But whether it ultimately comes out on the right or wrong side of human rights remains to be seen.
Mark Heywood is the editor of Maverick Citizen, an online news publication focusing on human rights, social justice and civil society activism. He was previously the founder and Director of SECTION27, as well as a co-founder of the Treatment Action Campaign (TAC).