Quote of the week

[E]ven if the [coronavirus] is under control, many voters may be cautious about stepping out to a polling place where many people will gather. When I reached out to a wide array of voting rights advocates, election law scholars, and former election officials, I heard the same three-word solution over and over again: “vote by mail.” Mail-in ballots are a major reason turnout did not crater in the Florida and Arizona primary elections held earlier this month. And they are the most straightforward way to ensure that voters can still cast a ballot even if they are stuck at home. In the ideal regime, which already exists in Colorado, Oregon, Washington, Utah, and Hawaii, voters would automatically receive a ballot in the mail in the weeks before the election. These voters should also be given the option to vote in person, in case they do not receive the ballot or lose it, but no one should have to request a mail-in ballot in order to receive one.

Ian Millhiser
Vox
15 March 2020

What measures can the government legally take to deal with the coronavirus crisis?

Drastic measures are necessary to slow the spread of the coronavirus in South Africa. Some of the necessary measures will limit the rights of individuals, thus implicating the provisions of the Bill of Rights, including the rights to privacy, freedom of movement, freedom of assembly and freedom of religion. As long as these limitations are sourced in law, based on evidence, and are proportionate, the limitation of rights will be justified. However, measures not based on available medical evidence and sound public health principles run the risk of stigmatising individuals or entire communities and may not pass constitutional muster.

The South African government has now taken several drastic steps to try and slow the spread of the coronavirus in the country. While it is important for the government to continue to provide clear, consistent, and accurate information about the virus to educate and inform the public, this alone will not be sufficient. Other measures that will severely limit the rights of individuals may also be necessary. On Sunday President Cyril Ramaphosa announced several of these measures, largely relying on the provisions of the Disaster Management Act.

First, the government announced limitations on inward travel to South Africa from identified hotspots – something done by countries like the United States when it was far too late to have a real impact. Second, it announced steps to scale up testing, and the tracing of all individuals who have been in contact with individuals who tested positive. (Unfortunately, no announcement was made about the provision of free testing for all.) Third, it was confirmed that those with the virus would be isolated and those who came into contact with somebody who tested positive could be quarantined. To limit physical contact between people, the government also banned public gatherings where more than 100 people are present. While it discouraged other gatherings, there was no announcement about the closing of churches and other social spaces like bars, taverns, and restaurants.

The government did not ban the entry of South African citizens from coronavirus hotspots because this is not permitted by the Constitution. Section 21(3) of the Bill of Rights specifically states that “every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.” Unlike most of the other rights in the Bill of Rights, this right only applies to citizens. While the government may place citizens who travelled abroad in quarantine (usually for a period of 14 days), it is inconceivable that an absolute ban on the entry of South African citizens from high-risk countries would be found to be constitutionally compliant.

Testing, quarantine and isolation for notifiable diseases are provided for by Regulations relating to the surveillance and the control of notifiable medical conditions issued by the Minister of Health in 2017 in terms of the National Health Act. It is important to note that section 2(2) of the Regulations require the government to take account of  “full respect for the dignity, confidentiality, human rights and fundamental freedoms of persons” when implementing these measures.

Section 14 of the Regulations requires certain individuals to be tested, medically examined, treated, isolated or quarantined. This applies to both individuals who carry the virus and those who came into contact with individuals who carry the virus. The section also imposes obligations on those who carry the virus to provide all necessary information required to enable physical or virtual monitoring during the disease. Ramaphosa’s announcement emphasised that this testing, quarantine and isolation will be stepped up in several ways.

What happens if an individual who is a clinical or laboratory confirmed case, carrier or contact of a notifiable medical condition refuses to be tested, treated, isolated or quarantined? Section 15 of the Regulations allows the head of a provincial heath department to approach the High Court for an appropriate court order to force the person to comply. This means, in effect, that individuals cannot opt out of testing, isolation and quarantine measures aimed at containing the spread of the disease.

Some experts point out that one of the ways in which the coronavirus is spread, was from one member of the household to another. This means that isolation may work best if a patient is isolated away from his or her family and loved ones. Such isolation would have a serious impact on the lives of those affected, but the available evidence suggest that it would not be a disproportionate response and may constitute a justifiable limitation on the rights of those concerned. It is important to note that Ramaphosa announced on Sunday that the government is “in process of identifying isolation and quarantine sites in each district and metro”, suggesting that it accepts that such quarantining and isolation cannot usually happen at home.

Because of fear and ignorance, there is a great danger that individuals who are isolated or quarantined will be stigmatised and scapegoated, and that this might lead to vigilantism. It is therefore important to note that section 18 of the Regulations protects the confidentiality of patients and other affected persons. The section states:

(1)  Information concerning a case, contact or a carrier of a notifiable medical condition, including information relating to his or her health status, treatment or stay in a health establishment, is confidential. (2)  No person may disclose information contemplated in sub-regulation 18(1) unless (a) the disclosure is for the purposes of public health surveillance, investigations and interventions; or (b) a court order or any law requires that disclosure.

Over the past week the organisers of many public events in South Africa voluntary cancelled their events to limit physical contact between individuals. The government has now announced that any “gathering” of more than 100 people is banned. Unfortunately it has not yet provided a definition of a gathering. Is a lecture at a University a gathering? A church service? People congregating at a bar or tavern? We are awaiting details on this.

The measure to ban gatherings larger than 100 people is authorised by section 27 of the Disaster Management Act. These provisions only become available to the national government, once a national disaster has been declared. This is what happened on Sunday. As a reader pointed out to me on Sunday (commenting on an earlier version of this article) the Disaster Management Act applies to different spheres of government and regulates co-operation between spheres of government. But it also provides extensive powers given to the relevant Minister to deal with “disasters” which are defined as follows:

“a progressive or sudden, widespread or localised, natural or human-caused occurrence which (a) causes or threatens to cause (i) death, injury or disease; (ii) damage to property, infrastructure or the environment; or (iii) significant disruption of the life of a community; and (b) is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.”

The coronavirus emergency clearly falls within the scope of a diaster as envisaged by the Act. Of importance here is that section 27(g) which allows measures to “control and occupancy of premises in the disaster-stricken or threatened area”. This provision would have to be a read expansively to allow for the ban on gatherings larger than 100, as “occupation” would have to be extended beyond the meaning of “living in a structure” to “being present in a structure”. If it is read in the latter manner the ban would be authorised.

Section 27 also authorises the placing of limitations on the sale of liquor, authorises the government to move people around, and to evacuate people from their homes. It also allows the suspension of transport and other measures to address the crisis. It further allows for the regulation of the movement of people. Many (but probably not all) potential measures that might be of help would be authorised by this section of the Act.

Section 27(3) imposes important limitations on how these powers may be exercised. This is important to prevent the potential abuse of these powers by any government. The section states that the powers contained in section 27 of the Act may be exercised only to the extent that this is necessary for the purpose of assisting and protecting the public; providing relief to the public; protecting property; preventing or combating disruption; or dealing with the destructive and other effects of the disaster.

The National Schools Act allows the government too close all schools, which was indeed announced by Ramaphosa on Sunday. The Higher Education Act also permits the Minister to close Higher Education institution, but only after consulting the Council of Higher Education. I assume the closing of Universities were not announced on Sunday because this consultation had not yet been completed by the time the announcement was made.

A national disaster should not be confused with a state of emergency. While the government can invoke the extensive powers contained in section 27 of the Act to deal with the crisis, this does not in any way limit its obligation to respect the rights contained in the Bill of Rights. Any measures implemented in terms of the Disaster Management Act or any other legislation can still be tested against the rights in the Bill of Rights and declared unconstitutional if they are over broad or not proportionate.

Declaring a state of emergency is a far more radical step as this allows the government to derogate from most of the rights in the Bill of Rights beyond what would normally be permitted. Of course, in times of crisis, people tend to be more forgiving of a government who imposes authoritarian measures to deal with the crisis. It is therefore not surprising that some people are suggesting that the government declare a state of emergency in terms of section 37 of the Constitution. Section 37(1) states that:

(1) A state of emergency may be declared only in terms of an Act of Parliament, and only when (a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to restore peace and order.

While it is conceivable that the current crisis could develop into a “public emergency” as required by the section, it is more difficult to imagine a court confirming that a state of emergency is necessary to “restore peace and order” in a public health emergency. In any event section 37(2) states that such a state of emergency could only be declared for a period of no more than 21 days (although the National Assembly may extend this, first with a simple majority vote and, the second time, with a 60% majority vote).

During a state of emergency most of the rights contained in the Bill of Rights can be derogated by legislation – but only to the extent that the derogation is strictly required by the emergency. In theory the declaration of a state of emergency could therefore lead to the radical watering down of the protections contained in the Bill of Rights.

Given the fact that rights may already be limited by law of general application as long as the response is proportionate, the declaration of a state of emergency is not legally required to deal effectively with the potential crisis.  In my view it would therefore be a mistake to declare a state of emergency, firstly because it may not be authorised by section 37, secondly because it may not be necessary to deal with the crisis, and thirdly because it will set a bad precedent and may encourage further authoritarian behaviour.

To the extent that existing legislation does not provide the requisite legal authority to allow the government to enforce appropriate physical distancing, Parliament could be called upon to pass such legislation in the next day or two.

In times of a potential health crisis that requires the radical physical distancing of people, there is a danger that citizens turn on one another and scapegoat those perceived to be high risk, clamouring for them to be banished from view. This would be exactly the wrong response. Instead, what is required is the fostering of social solidarity with the understanding that every single person is at risk and every single person can take steps to protect themselves and – more importantly – protect others.

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