RAZINA MUNSHI: Are the new lockdown rules constitutional?
All over the world, private citizens, lobby groups and political parties have launched appeals against lockdown rules. SA is no exception, and more challenges are likely to follow
The screws on the movement of South Africans tightened on Sunday night, as President Cyril Ramaphosa announced new lockdown restrictions to help curb the spread of Covid-19.
A nightly curfew has been reimposed, alcohol sales have been banned again, masks have been made mandatory and taxis undertaking long-distance trips will be limited to a capacity of 70%.
It has left many South Africans deeply frustrated.
The context is important: the number of Covid-19 infections places SA at 10th in the world, and fourth when it comes to the daily growth in new cases after the US, Brazil and India. Hospitals are also already overwhelmed, with insufficient beds, oxygen and ventilators – pointing to the government’s failure to manage this crisis.
The argument Ramaphosa made on Sunday was that the new rules are necessary to save lives.
But will those regulations pass the test of constitutionality?
Constitutional law professor Pierre de Vos believes it “would be difficult” to argue that the booze ban is not necessary to deal with the destructive effects of Covid-19, now that hospitalisations are surging.
“I would be surprised if a court found that there was no rational connection between the ban and the aim of freeing up hospital beds to deal with the medical consequences of Covid-19,” he writes in his blog, Constitutionally Speaking.
The timing, however, is awful. The previous ban, which lasted until June 1 – at a time when cases were low and hospitals were close to empty – may actually have been invalid. De Vos believes the ban may have been a strategic mistake, as it could have contributed to the hardening of public attitudes towards the lockdown, thus turning a public health emergency into a matter of law and order.
So what about the curfew? De Vos says this is more controversial from a constitutional perspective.
In defending the curfew the state would have to put facts before a court about why this is such an extreme case. And it would have to show that other, less restrictive, means aren’t available to achieve that purpose. The infringement of a right will not be justified merely because it’s the most convenient way to achieve a desired purpose.
Read De Vos’s full assessment of this (as well as the issues of 100% capacity in taxis and the obligation to wear a mask) here.
Ultimately, however, De Vos believes most courts have a “deferential attitude” towards the lockdown restrictions. “I am not as confident as I would normally be that a challenge … would be successful,” he concludes.
Already there have been a number of legal challenges to the lockdown from the tobacco lobby, a group called the Liberty Fighters Network, an individual who hoped to have the ban on religious gatherings set aside, the DA and the Helen Suzman Foundation.
This week the government’s cigarette ban will be back in court, as the Fair Trade Independent Tobacco Association’s application for leave to appeal against the dismissal of its earlier challenge will be heard on Wednesday.
And yesterday minister Nkosazana Dlamini Zuma asked the Supreme Court of Appeal for leave to appeal against Judge Norman Davis’s earlier ruling, which declared six lockdown regulations irrational.
A rash of legal challenges
But SA isn’t the only country where private citizens, lobby groups and political parties have challenged lockdown rules.
The outcomes have varied widely across the world.
Earlier this month a court in western Germany overturned an emergency lockdown that had been imposed in the town of Guetersloh after a coronavirus outbreak at a local slaughterhouse. The judge said the restrictions were disproportionate, even though 1,500 people at the meat plant were infected.
The ruling is a setback for Germany’s system of quick lockdown responses, which the country has relied upon to fight the pandemic at a localised level.
But what was interesting was how the court changed its mind. The first challenge, by a private individual, against the first week of the Guetersloh lockdown was rejected, but after it was extended by another week a judge agreed with an entertainment company that the authorities had had time to impose more specific restrictions.
Meanwhile, in the UK last week, millionaire businessman Simon Dolan lost his court bid to have England’s lockdown rules declared illegal. Dolan has previously described the laws as the “most draconian” to be introduced in England; but the court refused to review them.
“By forcing people to stay at home, and forcing businesses to close, they are, we believe, in contravention of basic human rights offered under English law, that of the right to enjoy your property peacefully,” Dolan argued.
But even though the lockdown affected the freedom of assembly and association, the court refused to declare them illegal. “There is no realistic prospect that a court would find that regulations adopted to reduce the opportunity for transmission by limiting contact between individuals was disproportionate,” Judge Clive Lewis said.
Unsurprisingly, the US has probably had the most legal challenges to coronavirus-imposed restrictions.
That country’s supreme court in May turned aside a church’s urgent plea that California’s lockdown orders were putting an unconstitutional burden on religious freedom. The church had hoped to have California governor Gavin Newsom’s directive limiting churches to 25% of their normal maximum capacity overturned.
But other laws have been overturned. The Wisconsin supreme court earlier struck down a stay-at-home order, siding with a legal challenge from Republican lawmakers who said the state’s top public health official exceeded her authority by imposing the restrictions.
Similar cases have taken place in Oregon, Michigan, Kentucky and Illinois, while the state of California faces lawsuits that include claims that it unjustly closed gun shops and religious services.
Clearly, citizens across the world aren’t enjoying these restrictions. And in SA, where the population is dealing with one of the toughest lockdowns on the globe, it’s inevitable that we’ll soon see more cases testing the constitutionality of the rules.
* Munshi is News & Fox editor of the FM
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