On Covid-19 beach restrictions: bad policy is not necessarily unconstitutional

As the number of confirmed daily cases of Covid-19 soared to more than 10000 earlier this week, many South Africans angrily argued about the decision to close some, but not other, beaches across the country. As a result, various groups (including Afriforum and the Democratic Alliance) are threatening to challenge the constitutional validity of the beach-ban regulations. But while one can argue about the wisdom or effectiveness of these regulations, it is far from clear that a court will declare these regulations invalid.

As the second wave of Covid-19 infections sweeps across South Africa and the death toll rises, we should all really be discussing how we can modify our own behaviour to help limit the spread of Covid-19: Wear a mask over your nose in public places; avoid crowded spaces (especially indoors); drastically limit the number of people you socialise with; wash your hands regularly. We should also be focusing on what our government is doing (or not doing) to speed up the roll-out of the Covid-19 vaccine in South Africa; what it is doing to bring down prices of the vaccine globally; and what it is doing in partnership with other nations to fight global unequal access to the vaccine.

But as I am a constitutional lawyer and not a public health expert, and as I am assuming that most people can focus on more than one thing at a time, I am finding myself writing yet another column on the lawfulness of regulations issued in terms of the Disaster Management Act. My argument is this: while you are, of course, free to be angry about the inconvenience caused by the closure of a particular beach on a particular day, and about the economic consequences of such a closure, from a constitutional law or human rights perspective this is not a particularly important or pressing concern. A legal challenge to the ban is therefore likely to face an uphill battle in court.

Below I evaluate some of the legal arguments that might be raised to challenge the lawfulness of the new regulations on beach closure, and explain why it would be surprising if such court action succeeds. (As no court papers are available, it is possible that litigants will advance arguments others than those discussed below.)

1. Limitation on freedom of movement and its justification

In a media release announcing that it is lodging an urgent application to have the beach regulations invalidated, Afriforum argues that the regulations limit freedom of movement guaranteed in section 21 of the Constitution. It further – correctly – notes that such a limitation can only be justified if it is imposed by a law of general application, but then makes the startling claim that the beach closure regulations is not a law of general application.

As the Constitutional Court pointed out in Prinsloo v van der Linde, it would be impossible to govern a country without treating different people in different places differently. Legislation often differentiates between people, regions, locations, or on other grounds but nevertheless remain law of general application. That is why legislation that imposes different speed limits on different types of roads, or distinguishes between urban and rural areas remain law of general application.

In President of the Republic of South Africa v Hugo the Constitutional Court further noted that a rule or order that “is non-recurrent and specific, intended to benefit particular persons or classes of persons, to do so once only, and is given effect by an executive order directed to specific state officials” would not constitute a law of general application. The beach closure regulations has little resemblance to such a rule.

But this is not the end of the matter as the restrictions on beach access do seem to impose a moderate limitation on the right to freedom of movement. If the court finds that the regulations do impose a limit on the right to freedom of movement, it will still have to decide whether the limitation is justifiable in terms of section 36 of the Constitution.

This would require the court to balance the competing interests, the interests of those individuals whose rights are being limited on the one hand, and the interests of the state and society on the other. On the one hand, a court would have to consider how severe the limitation is that is being imposed on the right to freedom of movement. The more severe the limitation on the right, the less likely that the limitation would be justifiable. On the other hand, the court would have to consider the importance of the purpose of the limitation. The more important the purpose, the more likely that the limitation would be justifiable.

Unlike the countrywide nightly curfew currently in force, the restrictions on beach access will have a limited impact on the enjoyment of the right to freedom of movement. Here it is important to understand that this question cannot be answered by asking how severe the  impact of the limitation will be on other interests such as the economic well-being of business owners. While concerns about the economic impact of these measures are important from a policy perspective, they are not relevant for purposes of limitation analysis. On the other hand, the purpose of the limitation – to reduce the spread of Covid-19 to save lives – is of pressing importance. In short, the court must decide whether the need to save lives should trump the right of individuals to go to the beach?

While it is not always easy to predict how courts will balance the various interests in limitation analysis, most judges tend to be hesitant to second-guess policy makers in life or death cases like this. I would therefore be surprised if a court finds that the restrictions on beach access constitute an unjustifiable limitation on the right to freedom of movement.

2. The different treatment constitutes a form of discrimination in terms of section 9(3)

Afriforum also argues that the beach-closure regulations constitute a form of “unconstitutional discrimination” as some beaches remain open, some are closed for the big public holidays, and others are closed for the entire festive season. Presumably, this claim is based on the prohibition against unfair discrimination contained in section 9(3) of the Constitution. A similar argument was advanced by some who object to the fact that some beaches in the Western Cape and the Northern Cape remain open.

The problem here is that – constitutionally – “discrimination” only occurs when a specific rule impacts differently on different groups of people, based on their race, sex, gender, or other specifically identified characteristics. A regulation that has a disproportionate impact on a specific town, region, or on specific business owners would therefore not amount to “discrimination”. Yes, the beach ban may have serious negative economic consequences for the affected regions, but this does not amount to “discrimination” on individuals based on their race, sex, gender or other identified characteristic.

If the regulations had only targeted beaches overwhelmingly frequented by one race group, an argument of racial discrimination might have been plausible. Instead, the regulations target a wide variety of beaches, frequented by a cross section of South Africa’s population, which means Afriforum’s claim that the regulations constitute “unconstitutionally discrimination” is a legal nonsense.

3. The regulations infringe on the equality guarantee in section 9(1)

While Afriforum did not raise this possibility in their press statement, a more plausible equality argument would be that the regulations irrationally differentiate between people in conflict with section 9(1) of the Constitution. Section 9(1) applies to situations where the differentiation is not based on one of the specified characteristics such as race, sex gender and the like. In other words, it would apply to a situation like this where the regulations differentiates between different provinces, regions and towns.

The problem is that the test imposed by section 9(1) is not easy to meet. What one would have to show is that the different treatment of different areas is irrational. It would be rational if there is a legitimate government purpose for the differentiation and if it is rational. The state is not permitted to differentiate between people in an arbitrary manner or to manifest “naked preference”, but it is permitted to differentiate between people regardless of whether it could have achieved its purpose without differentiating.

In Jooste v Score Supermarket, the Constitutional Court warned that the question is not whether the method chosen by the state “could be improved in one respect or another”. The court will also not second-guess even “highly debatable, controversial and complex matters of policy” when applying section 9(1). It would therefore not be helpful for an applicant to argue that the regulations are unwise or ineffective, or that they are likely to cause economic harm. As the Court warned in Jooste, when applying section 9(1) the Court will not make policy choices under the guise of applying the rationality standard.

It cannot be gainsaid that the aim of slowing down the spread of Covid-19 and protecting lives is legitimate. The state will also be able to point to the constitutional obligation of co-operative government, the need to consider local circumstances, and the different levels of economic activity in different areas to demonstrate that the differentiation is rational. It matters not whether the decision to differentiate between different regions was a good policy decision, as the court is not allowed to nullify the regulations merely because it believes the government adopted an unwise policy. For these reasons, it is highly unlikely that an argument based on section 9(1) will succeed.

In conclusion, one should be careful not to conflate valid criticism about the wisdom of a particular government policy with the question of whether that policy is constitutionally compliant or not. While it is not impossible that the organisations who intend to approach the courts to challenge the validity of these restrictions will advance legal (and not policy) arguments before the court, it is important to evaluate these arguments based on the applicable legal principles and not based on one’s own policy preferences.

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