Lockdown: an extension may not even be legal
A court may have to determine whether the means (the lockdown) are reasonably capable of achieving its intention (to save lives by curbing the spread of the virus)
At this point, more than two-thirds of SA’s unprecedented Covid-19 lockdown is behind us. If the daily infection numbers are anything to go by, measures to enforce social distancing are working. Two weeks ago, health minister Zweli Mkhize warned that a celebration would be premature since we may be just experiencing the calm before the storm.
Then, on the eve of Good Friday, president Cyril Ramaphosa announced the lockdown would continue for another two weeks despite the apparent drop in confirmed cases in recent weeks. Ramaphosa justified his decision by referring to the global increase in infections and the fact that more developed countries are failing to deal with the spread of the virus.
But even if we assume that this extension was a lawful exercise of power by the state, the lockdown must surely come to end after the additional 14 days. So, does the state have an exit plan?
Strictly speaking, under the Disaster Management Act, a national disaster is not limited to a defined time limit like, say, a state of emergency, which usually only applies for 21-days.
Instead, a declaration of a national disaster remains valid for three months -though it can be extended by the executive on a month-to-month basis, for as long as the country is gripped with the crisis.
And, experts warn, Covid-19 could be around for months, if not years (depending on various factors, like whether a vaccine is found). The bottom line is: this national state of disaster could be around for a long time.
Does this mean that we could be locked down for months to come? Well, here’s a lawyer’s response: maybe.
There are two possible scenarios, if additional quarantine measures are deemed necessary: first, another extended lockdown; or second, the lockdown ends, but is reinstituted in future.
Under the current regulations, the lockdown confines people to their homes, unless they are buying food or essential goods; collecting a social grant or pension; or seeking medical attention. It’s a restriction of the civil liberties enshrined in the constitution, including the right to freedom of movement, the right to trade, and right to practice your religion.
It’s clear the state is trying to protect lives, and the executive could argue that the lockdown safeguards the right to life. Which seems reasonable, since the Constitutional Court has held that the right to life is the most important of all the human rights. There can be no nobler exercise of state power.
And yet, degrees of nobility are not the criteria against which the limitation of civil rights should be measured. Rather, what is required is to test the measures taken to preserve life against the other rights that are diminished, through the clause in the constitution that allows for rights to be limited. Any such analysis must look at whether limiting those rights is a proportional response.
That argument would probably go along these lines: the civil rights that have been curtailed are important to an open and democratic society based on human dignity, equality and freedom, and could only be limited by something as serious as the need to preserve life.
But the state has placed an extensive limitation on those rights and it’s well established in our jurisprudence that the more severe the limitation, the more compelling the justification for the limitation has to be. In this case, the justification is we need to curb a deadly virus.
Now if this were before a court, any judge would have to determine whether the lockdown is reasonably capable of achieving its intention of saving lives. The falling rate of infections show the lockdown can achieve this purpose.
But, the court will also have to determine whether there are less restrictive means available to achieve the same thing.
This is the critical factor that would determine whether any further extension to the lockdown would be lawful.
The fact is, SA’s lockdown may be working — but it’s also one of the most drastic in the world. The state would need to produce compelling arguments that such a severe lockdown would need to continue, considering that first, it has achieved the immediate purpose of slowing the rate of infection, and second, there are less restrictive means of slowing the rate of infection that don’t involve this degree of confinement.
If, by the end of April, the growth in infections is still in the single-figure range that Ramaphosa cited last Thursday, it isn’t likely that any further extended lockdown would pass constitutional muster.
Of course, there is always the second scenario: where the lockdown ends, but is reinstituted later because infections spike again.
In that case, where less restrictive measures are ineffective at curbing infections, another lockdown period may well be found to be lawful. But each period would need to be judged on its own merits.
At this point, the trajectory of the disease isn’t clear. But the silver lining in the loss of our liberties during the state of disaster is that the Constitutional Court has coupled the right to life with the right to dignity.
This is important since being confined to your house for an excessively long time is a breeding ground for the infringement upon someone’s dignity — especially when that person lives in an informal settlement or a high-density low-income households.
From a political morality point of view, state coercion can only be justified when it is consistent with the dignity of the person affected. In other words, that person’s fate has to be as important as anyone else’s, otherwise it’s a form of oppression.
And yet, the extent to which the lockdown rules fail to take into consideration the plight of many of our compatriots is apparent. A sustained period of lockdown, under oppressive conditions, could have a significantly negative impact on the dignity of the most vulnerable members of society.
Seen through that prism, any extension to the lockdown could be challenged legally — and may very well be struck down.
- Abdullah is an associate in Cliffe Dekker Hofmeyr’s dispute resolution practice
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