Quote of the week

Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.

Angelo Fick
Johannesburg Review of Books
26 March 2020

Vague Covid-19 lockdown regulations may make enforcement and adherence more difficult

While the “lockdown” Regulations promulgated on Wednesday in terms of the Disaster Management Act are not always as clear as they could have been, they should work if those who enforce the regulations and those bound by them act in good faith and with a sense of solidarity. But this is a big “if”.

In Affordable Medicines Trust and Others v Minister of Health of RSA and Another (and in several subsequent cases) the Constitutional Court held that regulations could be declared invalid if they are so vague that it is difficult to determine what is required by them. The doctrine of vagueness is founded on the rule of law, which is a foundational value of our constitutional democracy. The Court held that:

[L]aws must be written in a clear and accessible manner. What is required is reasonable certainty and not perfect lucidity. The doctrine of vagueness does not require absolute certainty of laws. The law must indicate with reasonable certainty to those who are bound by it what is required of them so that they may regulate their conduct accordingly.

Most of the lockdown regulations provide “reasonable certainty” about what is permitted and what not. But in some cases, the regulations may have to be augmented to clarify matters and to ensure their effective enforcement. Let us have a closer look.

1. You may not leave your house unless it is absolutely necessary and unless this is permitted by the Regulations.

The regulations prohibit anyone from leaving their “place of residence” except in exceptional circumstances defined in the Regulations. This wording is unfortunate. Although a “place of residence” is not defined in the regulations, it ordinarily means the place where somebody actually lives.

If strictly interpreted, it would mean that you are not allowed to go and live with your girlfriend, father, or friend during the lockdown, but are required to stay in the house where you normally live. But a purposive interpretation may allow you to interpret this provision a bit more broadly to include a place where you sometimes stay.

Regulation 11B provides for specific exceptions to this general ban on leaving your “place of residence”. I will deal with each separately.

a) You may leave the house “strictly for the purpose of performing an essential service”.

This means that anyone involved in any of the list of 28 essential services listed in Annexure B to the Regulations is permitted to leave their home to do their essential work. Essential services are performed by journalists, lawyers and judges, workers involved in the production and sale of food and other essential services, police and military personnel, garbage collectors, private security personnel, taxi drivers, Uber drivers, and bus drivers but only when they provide transport for people rendering essential services or transporting patients.

Taxi drivers, Uber drivers, and bus drivers do not perform an essential service when they transport ordinary citizens to the shop to buy food. This must be a mistake as the Regulations allow the transportation of individuals to the shop to buy food and to the chemist to buy medicine. It is irrational to prohibit a taxi driver from leaving her house to transport ordinary citizens to the shop to buy food, but then to permit them to do so elsewhere in the regulations.

b) You may leave the house to obtain an essential good or service

This means you are permitted to go out to buy food and other essentials. These are also defined in Annexure B to the Regulations, and include “any food product”, including non-alcoholic beverages, animal food, and other goods like cooking oil, spices and packaging. They also include cleaning and hygiene products like toilet paper, soap, products to clean the house with and wash your clothes with. You may also go out to buy petrol, coal and gas and “basic goods including airtime and electricity”. Lastly, you may go out to buy medical and hospital supplies, which, presumably, includes medication.

Some questions arise here.

First, does this mean that you can go out to buy take-aways or other prepared food from informal traders? It is clearly prohibited to go somewhere to buy food and then to eat it on the premises. But if you can buy cooked food from the deli counter at Spar, it would not make sense that you cannot buy fish and chips from a take-away shop and ulusu from an informal trader. This conclusion is bolstered by the fact that Annexure D of the Regulations explicitly excludes shisanyamas who do not sell liquor from the list of places closed to the public.

Second, the regulations do not define what would constitute basic goods. Does it include cigarettes and lighters, suntan lotion, hardware equipment and products, towels, cosmetics, toys, fashion or sports magazines, academic books and novels? (For some of us, it would be obvious that books are basic goods, but it is impossible to know whether the regulations consider them so.)

Things are complicated by the fact that regulation 11B(1)(c) prohibits retail stores who sell essential goods from selling any other goods. This means the local Spar will have to decide which goods are essential goods that could be kept open on the shelves and which one’s should be covered up. I am not sure the Regulations provide reasonable certainty to such retailers about how to make these decisions.

(As an aside, if informal traders are allowed to sell prepared food – as I suggested above – regulation 11B(1)(c) is badly drafted as it only applies to retail stores, which would mean informal traders will be allowed to sell the very non-essential products that the retail stores are prohibited from selling.)

Lastly, the regulations are silent about going to an ATM to draw money. One would have to assume that money is a basic good – like airtime and electricity – and are included in the list of goods that one is permitted to leave the house to obtain. It is, of course, impossible to define the list of essential goods with absolute precision, but that is not legally required. What is required is a bit more clarity to provide reasonable certainty about which goods are essential and which not.

The regulations allow the minister to amend the list of essential goods, so the minister can clarify some of these issues, amongst others by making clear that one may go out to draw money at an ATM.

c) You may leave the house to seek emergency, life-saving, or chronic medical attention

This means you are allowed to visit your doctor, but only for emergency, life-saving, or chronic medical attention. Clearly, you can go to the doctor for medical issues relating to HIV, TB or diabetes as these are chronic conditions. However, the regulations do not define what would constitute a medical “emergency”. The word suggests that the medical problem must be one that requires urgent attention and cannot be trivial in nature.

d) You may leave the house to collect a social grant or to attend a funeral of less than 50 people

These provisions speak for themselves. The Minister announced that the distribution of social grants will be staggered so that not all recipients will be required to collect their grants on the same day. The Regulations also prohibit night vigils preceding any funeral.

2. Regulation 11C prohibits all commuter transport services from operating. These include trains, busses, taxis, Ubers and flights. However, exceptions are made to transport individuals who work in essential services to their places of work. It is also permitted for taxis, buses and Ubers to transport ordinary people to the shops to buy essential goods, to the doctor for emergency, life-saving and chronic medical attention, and to pay points for social grants.

While these are not contained in the promulgated Regulations, the Minister of Transport announced yesterday that taxis, buses and Ubers will only be allowed to perform this service between 5am to 9am in the mornings and again from 4pm to 8pm in the late afternoons/early evenings. As the regulations decree that taxi ranks and bus depos are closed to the public, it is unclear where commuters would be allowed to catch the taxis and the buses. As many shops only open at 8am or later and close at 5pm or 6pm, it is not going to be easy for people depending on public transport to do essential shopping.

3. Offences and penalties

Individuals who leave their houses, other than to perform an essential service, obtain essential goods and services, seek emergency or other defined medical attentions, to collect a social grant or to attend a defined funeral service, commit a criminal offence and are liable for a fine or a term of imprisonment of up to six months. Owners of retail shops who sell non-essential goods face the same sanction. Any taxi, bus or Uber driver who contravenes Regulation 11C does not commit a criminal offence and cannot be prosecuted.

4. Conclusion: good faith enforcement and adherence to the Regulations are imperative

From the above it must be clear that there are some gaps in the Regulations and that some of them are vulnerable to legal challenge on the ground of vagueness. A more immediate concern is that the vagueness of the Regulations may present enforcement problems.

Because the Regulations are not as precise as they could have been, there is a danger that members of the SAPS who are required to enforce these regulations will enforce the regulations in an arbitrary and overzealous manner. There is also a danger that unscrupulous and corrupt members of the SAPS will “invent” rules that they will use to extract bribes from unsuspecting members of the public.

Furthermore, there is a danger that some members of the public will try to exploit uncertainty about the regulations to circumvent them. I fear that some entitled South Africans may lack a sense of solidarity and may try to avoid the inconvenience that inevitably accompany the lockdown by evading restrictions. While the Regulations provide for such individuals to be arrested and prosecuted, this is more effective when there is reasonable legal certainty about what conduct is prohibited and what permitted.

What is required from all of us – both those who police and enforce the lockdown and those of us who need to adhere to the lockdown rules – is to act in good faith and with a sense of solidarity in the knowledge that it is only if we embrace the spirit of the Regulations and avoid leaving our houses unless it is absolutely necessary to do so that the lockdown will be effective.

PS: An earlier version of this article mistakenly stated that veterinary services are not included as an essential service. This mistake has now been corrected.

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