Policemen patrol Diepsloot in Johannesburg as volunteers distributed soap and informative leaflets, March 21 2020. Picture: MICHELE SPATARI/ AFP
Policemen patrol Diepsloot in Johannesburg as volunteers distributed soap and informative leaflets, March 21 2020. Picture: MICHELE SPATARI/ AFP

The government, business, labour and other stakeholders are carefully scrutinising  the legislation through which a full lockdown can take place.

Given the rapid increase in the number of people affected by the coronavirus in SA, the question most people are asking now is whether  the country will join heavily hit countries such as China and Italy and go into a lockdown.

According to legal experts, this could be done either through the Disaster Management Act which is the most likely mechansims or by imposing a state of emergency.

In a bid to curb the spread of the novel coronavirus pandemic, the SA government last week declared a national state of disaster, which has resulted in myriad of regulations being put in place. Among these is the restriction on gatherings of more than 100 people and the times at which alcohol can be sold. The government has also released some R450m in immediately available disaster funds.

On Saturday, the government announced that 240 people had tested positive for Covid-19. The majority of these infections were in Gauteng, the country’s most populous province, which is also its economic hub, contributing more than a third of SA’s GDP.

The Disaster Management Act would be sufficient, legal experts said, to put in place measures to restrict the movement of people. This  could be in place for a longer period than if a state of emergency was to be declared, which cannot be longer than 21 days unless the National Assembly extends it.

The provisions of section 27 (2) of the act include the regulation of the movement of people or goods in or out of the disaster-stricken area. The provisions also include that “other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster”, can be taken.

This could include imposing a lockdown and bringing in the military to enforce it.

Prof Pierre de Vos, a constitutional law expert from the University of Cape Town, says it is clear from the act that a lockdown can be imposed under a national state of disaster.

He said if the government wanted to go into a state of emergency, which at this stage seems unlikely, it would be because it was necessary to infringe on the bill of rights in order to contain the epidemic.

The limitation clause in the constitution provides that rights can be limited in terms of a law of general application only to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

But in a state of emergency, certain rights can be suspended to the extent that it is necessary for the emergency, De Vos said.

While there are draft regulations for a state of emergency, which would only have to be gazetted to take effect, this would be a drastic step to take, says De Vos, as the constitution provides that such a declaration would have to be necessary to restore peace and order.

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