On the supersized level 3 lockdown regulations: will they pass constitutional muster?

On Sunday night President Cyril Ramaphosa announced new lockdown measures in an attempt to curb the surge in Covid-19 hospitalisations and to prevent the collapse of the health system. The regulations promulgated to give effect to these changes also reimpose the ban on staying at Hotels and Bed and Breakfast establishments for leisure purposes. The constitutional validity of some of these measures may well again be challenged in court, but what are the chances of success?

For the past two weeks South Africa has consistently registered the fourth largest number of new confirmed cases of Covid-19 in the world (after the USA, India and Brazil). The number of actual cases is bound to be much higher than the number of confirmed cases. The government’s efforts to suppress the spread of coronavirus therefore seemed to have failed, which means hospitals are increasingly being overwhelmed while oxygen shortages are mounting. It is in this context that President Ramaphosa announced the immediate imposition of a supersized level 3 lockdown. In what follows I look at some of the measures imposed on Sunday night, and discuss whether these measures are constitutionally compliant and thus valid.

 1. Ban on the sale and transportation of liquor

The new regulations 44(1) now prohibits the sale, dispensing and distribution of liquor. Regulation 44(2) also prohibits the transportation of liquor for personal use. This means that it is now a criminal offence to sell liquor and to transport liquor from one place to another. If you are caught with a six pack of beer in the boot of your car (with or without a receipt), you will therefore in trouble. And a challenge to the validity of this regulation is probably not going to be of any assistance to you.

Section 27(2)(i) of the Disaster Management Act explicitly permits the suspension of the “sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area”. Section 27(3) qualifies this by stating that this may only be done “to the extent that this is necessary for the purpose of “(a) assisting and protecting the public… (e)  dealing with the destructive and other effects of the disaster.”

Arguably, the ban on the sale of liquor during level 5 lockdown (when confirmed cases were low and hospitals were close to empty) was not necessary to deal with the destructive effects of Covid-19 and may have been invalid. The level 5 ban may also have been a strategic mistake as it may have contributed to the public hardening of attitudes towards the lockdown, thus turning a public health emergency into a matter of law and order in the eyes of the public. (But given the general deference shown by our courts to lockdown regulations, it is not clear that the courts would have invalidated the ban.)

However, now that hospitalisations of Covid-19 patients are surging and the many of hospital beds needed for such patients are taken up by people injured due to alcohol related activities, it would be difficult to argue that the ban on the sale of liquor is not necessary to deal with the destructive effects of Covid-19. The ban is clearly authorised by the Disaster Management Act and as long as it is rationally related to the purpose of the declaration of the disaster, it will be valid. I would be surprised if a court found that there was no rational connection between the ban and the aim of freeing up hospital beds better to deal with the medical consequences of Covid-19.

2. Re-imposing a nightly curfew

The new regulation 33 re-imposes a nightly curfew between 21h00 and 04h00. It contains provides for exceptions where a person has been granted the required permit, is required to perform a permitted service, or must attend to a security or medical emergency. From a constitutional perspective, the imposition of a curfew is a controversial lockdown measure. This is because it infringes on the right to freedom of movement guaranteed in section 21(1) of the Constitution. As the freedom of movement of black South Africans were heavily restricted by the apartheid regime, the protection of this right has a particular political resonance in South Africa.

Assuming that the lockdown regulations constitute “law of general application”, the validity of the curfew imposed by regulation 33 will have to be decided by asking whether this particular limitation on the right to freedom of movement is justifiable in terms of the limitation clause. I have previously questioned the constitutional validity of a curfew, but as the situation has become more dire since then, it is worth asking whether anything has changed to justify it now. This is not an easy exercise to undertake as we have not been informed exactly what the purpose of re-imposing the curfew is.

I will assume the purpose of the curfew is to stop socialisation of people at night (as such socialisation will allow the virus to spread faster), and additionally to make it easier for the police to enforce the other lockdown regulations. The former is an important and pressing purpose while the latter is not. This must be weighed up against the impact that the imposition of the curfew will have on members of the public. Clearly, a curfew radically curtails an individual’s freedom of movement and would only be justified in extreme cases.

In defending the curfew the state would have to put facts before the court on why this is such an extreme case. In doing so it would have to show that other, less restrictive, means are not available to achieve the same purpose. The infringement of a right will normally not be justified merely because the infringement is the most convenient or easiest way to achieve a desired purpose.

The state would have to show that other measures that are less invasive of citizen’s rights are not available to achieve the purpose. I am not sure they will be able to do so, but, once again, given the deferential attitude of most courts towards the government imposed lockdown restrictions, I am not as confident as I would normally be that a challenge to the curfew would be successful.

3. The ban on Hotel, Guest House, and Bed and Breakfast stays for leisure purposes

Both tourism minister Mmamoloko Kubayi-Ngubane and President Cyril Ramaphosa had previously claimed that the enhanced level 3 lockdown regulations prohibited leisure stayovers at hotels, lodges and guest houses. This claim must have been false. The original regulation 33(1)(a) allowed leisure travel within a province while table 2 disallowed short term home-sharing/letting/leasing/rental for leisure purpose. Regulation 39(2)(e) also ordered the closing of accommodation establishments “not formally accredited and licensed, such as private homes for paid leisure accommodation”. Hotels, Bed & Breakfasts and Guests Houses were allowed to function and no restrictions were placed on who they could welcome as guests. This means the regulations allowed leisure stays at accredited and licensed hotels, guest houses and bed and breakfast establishments, but not at private homes, self-catering venues, or Airbnb establishments.

While the minister has not admitted that her original claim was false, the regulations  promulgated on Sunday have been revised to prohibit Hotel, Guest House, and Bed and Breakfast stays for leisure purposes. This is done through an amendment of regulation 39(2)(e) which now orders the closure of:

(e) hotels, lodges, bed and breakfasts, timeshare facilities and resorts and guest houses, except to the extent that these facilities are required for accommodation by: (i) the remaining tourists confined to such facilities; (ii) persons for work purposes; and (iii) persons in quarantine or isolation.

Unfortunately, this is not the first time that a minister has falsely claimed that a lockdown regulation prohibits something that it does not – remember the hot food/Woolies chicken debacle – and then later amended the regulations to bring them in line with the minister’s originally false claim. In any event, you are now prohibited from staying at a Hotel, Bed and Breakfast or Guest House for leisure purposes. Is this prohibition rational and therefore valid?

From what I can gather, staying in a Hotel holds only a moderate risk for contracting and spreading coronavirus. But there is at least some risk, which means there would be a rational relationship between the ban on hotel leisure stays and the aim of limiting the spread of the virus. The prohibition is therefore probably constitutionally compliant. Oddly though, regulation 33(1)(h) still allows “travel for leisure purposes as allowed under Alert Level 3”. This means you can travel to your holiday home for leisure purposes, but cannot stay in the same town if you have to pay for your own accommodation. Whether this is a wise policy, given the risk of city folk taking the virus with them to small towns they visit, remains open to question.

4. Regulations on public transport

The regulations have been amended to allow minibus taxi’s to carry 100% of the licensed capacity for any trip not regarded as long distance travel and at 70% capacity for long distance intra-provincial and permitted inter-provincial travel. Although this is only allowed if additional safety measures are adhered to, a journey in a taxi filled to capacity poses considerable risk to passengers. Owners of private cars are protected from having to take this risk. Middle class and wealthy people therefore do not have to face the same risk as working class and poor people. Just another reason why Covid-19 is not a great equaliser, but a great illustrator of how inequality perpetuates itself.

When asking whether these regulations are constitutionally compliant, the difference between irrational (and therefore invalid) regulations, on the one hand, and unwise or politically problematic (but still valid) regulations, on the other side, becomes apparent. It also illustrates how malleable the rationality standard can be.

Much depends on what purpose the state claims it is pursuing. In this case, if the purpose of the regulations is to minimise the spread of Covid-19, the 100% rule looks plenty irrational as it would achieve the opposite of the stated purpose. However, if the stated purpose of this particular regulation is to minimise public transport disruptions during the Covid-19 crisis, then the regulations would be rational. In neither case would one enquire into whether this new regulation constitutes an abdication of the government’s obligation to protect working class and poor citizens from the spread of the virus. While the latter might be true, it would not in and of itself render the regulation irrational.

5. Criminal enforcement of the obligation to wear a face mask

The new regulations confirm that it is mandatory for every person in a public place to wear a face mask that covers the nose and mouth, unless that person is involved in vigorous exercise. The new regulations still do not criminalise an individual who fails to wear a mask in public.

However, it places an obligation on a driver or operator of any form of public transport, a manager or owner of a building, an employer, and a school principle to ensure the wearing of face masks in the space they have authority over. If these individuals fail to take reasonable steps to ensure compliance with the wearing of face masks commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment.

This means if you refuse to wear a mask in a taxi, a shop or mall, a public building or a school you are exposing the person in control of that space to criminal prosecution and even imprisonment.

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