Are some lockdown regulations invalid because they discriminate on the basis of race, or are not authorised by law?

On Monday, South Africa’s Constitutional Court declined to hear an application from a group styling itself the Hola Bon Renaissance Foundation, in which the group sought to challenge the constitutionality of the state’s recently gazetted shutdown regulations. The application was badly drafted, to say the least: It was as if one of the public protector’s lawyers had prepared the papers while high on at least two caps of acid. Some of the regulations may be unlawful and invalid, either because the legislation may not authorise the restrictions or because they unfairly discriminate on the basis of race.

Day five of the lockdown. Reports streaming in of members of the South African Police Service (SAPS) (some of them in civilian dress and covering their faces with balaclavas) and the South African National Defence Force (SANDF), terrorising people by administering humiliating physical “punishments”, and by assaulting and, in at least three cases, alleged murdering members of the public accused of not obeying lockdown regulations.

These are hopefully “isolated incidents”, but what is worrying is that large numbers of South Africans on social media seem to support the unlawful and humiliating physical punishments and assaults meted out by SAPS and SANDF members.

As few people would support the members of the SAPS whipping, say, Markus Jooste, Ace Magashule or Dudu Myeni, to punish them for their alleged involvement in corruption, I am going to assume support for the unlawful action taken against mostly working-class and poor people is largely based on class prejudice and on the mistaken and misguided belief that people who allegedly disobey any of the lockdown rules forfeit all their rights.

It goes without saying that members of the SANDF and SAPS are not authorised to “punish” individuals who they believe are breaking the lockdown rules by forcing them to do exercises, or by assaulting or killing them. One can only be punished if you have been convicted of a crime at a fair and open trial conducted by an independent judge or magistrate.

Turning a blind eye to the extra-judicial punishment meted out by members of the SAPS or SANDF of individuals who allegedly break lockdown rules will lead to abuse, including murder, as this case and this case illustrate. No surprise then that in the first four days of coronavirus lockdown police watchdog IPID received 21 complaints against the SAPS, including three deaths caused by police action, two corruption complaints and one of rape. These actions by some SANDF and SAPS members are criminal in nature and those responsible should be arrested, prosecuted and punished.

But what about the lockdown regulations themselves? Clearly, it is laudable that the government took drastic measures to limit the movement of people and to radically reduce the opportunities for individuals to pass the Covid-19 virus on to one another. But this is not the end of the matter.

Some of the regulations seemed to have been crafted without taking account of the fact that large numbers of South Africans do not live in houses and apartments in the suburbs. The regulations have a disproportionately negative impact on poor people, especially people living in informal settlements and may also (as I point out below) in certain circumstance constitute unfair discrimination in contravention of the Constitution.

Moreover, as I pointed out last week, some of the regulations – including those that define what constitute essential goods that may be sold in the shops – could well be void for vagueness. While I will not repeat that argument here, I wish to discuss other legal questions that arise about the validity of some of the measures instituted to enforce the lockdown.

First, some of the regulations are unnecessarily inflexible and do not provide for legally required exceptions, especially the regulations that ban the movement of people. Thus, many divorced parents with children have a custody arrangement formalised in terms of an order of court, which requires children to spend some time with one parent and some time with another.

However, the regulations require parents to ignore these court orders and to commit contempt of court as children may not be taken from one parent to another during the lockdown as required by custody orders. Put differently, the regulations purport to circumvent court orders, thus trenching on the separation of powers doctrine and interfering with the independence of the judiciary.

The failure to accommodate custody arrangements also causes unnecessary trauma and has led to severe hardship for some parents and children, something that could not possibly be in the best interest of the child as required by section 28(2) of the Constitution.

Second, I fear that the provisions regulating who can provide an essential service and who not, may unfairly discriminate against informal traders on the basis of race in contravention of section 9(3) of the Bill of Rights. I am not at all convinced that the authorities are interpreting the current regulations correctly when they claim that these regulations prohibit informal traders from selling essential goods such as food. But assuming that the regulations either prohibit or make it very difficult for informal traders to continue selling essential goods, the regulations indirectly discriminate against informal traders on the basis of race.

Section 9(3) of the Bill of Rights prohibits both direct and indirect unfair discrimination, as the Constitutional Court explained in Pretoria City Council v Walker, indirect discrimination occurs when the legal rule (that appears to be neutral) disproportionately impacts on the members of a group protected from discrimination. For example, a rule that requires all students to write tests on Saturday mornings indirectly discriminates against Seventh Day Adventists, who are not allowed to engage in such activities on Saturdays.

In the case of informal traders, a disproportionate number of informal traders are black. While the regulations do not mention race, the regulations disproportionately impact on black people and therefore discriminate against informal traders on the basis of race.

The question would be whether this discrimination is fair or unfair. I think a strong argument could be made that the discrimination is not fair and that the regulations dealing with this are therefore unconstitutional and invalid. The group being discriminated against is vulnerable and has historically suffered from discrimination and marginalisation. The impact of the discrimination on this group (as well as their families) is potentially devastating because it literally takes away this groups’ ability to earn a living. This means it would not be easy to convince the court that the discrimination is fair and therefore permitted.

On the other hand, it is not clear why the regulations make it impossible for informal traders to continue with their business, but allow formal traders to do so. It would not be sufficient to argue that it is bureaucratically difficult to regulate informal traders to ensure they only sell essential goods. This is because the intensity of the discrimination cannot be trumped by the mere need to avoid bureaucratic inconvenience. It is also not clear that any evidence exists that the virus is more likely to spread at the local Shoprite with many shoppers inside, than at the informal trader on the street corner sitting in the open air and serving one customer every few minutes. The purpose of the discrimination is therefore not so pressing that it would override the serious impact the discrimination will have on those affected.

For these reasons I will argue that a strong case could be made that the regulations unfairly discriminate against informal traders by making it impossible (or very difficult) for them to continue selling essential goods.

Third, it is not clear that section 27(2) of the Disaster Management Act authorises the government to prohibit anyone from selling non-essential goods. Section 27(2)(i) of the act does explicitly authorise the government to suspend or limit “the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area”. The prohibition on the sale of liquor is therefore expressly authorised. But section 27 does not authorise the prohibition on the sale of any other goods.

Given the fact that the legislature expressly authorised restrictions on the sale of liquor, but failed to authorise restrictions on the sale of other goods, it is not unreasonable to conclude that the legislature did not intend giving the executive the power to prohibit the sale of any other goods apart from liquor. The ban on the sale of all non-essential goods may, therefore, be invalid.

It is true that section 27(2)(n) authorises the government to take “other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster”. But given the fact that section 27(2)(i) – which deals with the suspension or limitations on the sale of goods – only allows such suspension or limitation to be imposed as far as liquor is concerned (and not for other goods), it is not so clear that this catch-all provision can be used as authority for the ban on the sale of all non-essential goods.

It is laudable that the government has taken drastic steps to curb the spread of the Covid-19 virus. However, this must be done in accordance of the law and by respecting all the rights protected in the Bill of Rights. To the extent that the current regulations are not authorised by law, or to the extent that the regulations unfairly discriminate against anyone, the regulations are invalid.

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