Discriminatory regulations invalid
‘It is laudable that the government has taken drastic steps to curb the spread of the Covid-19 virus. However, this must be done in accordance of the law and by respecting all the rights protected in the Bill of Rights. To the extent that the current regulations are not authorised by law, or to the extent that the regulations unfairly discriminate against anyone, the regulations are invalid.’
Constitutional law expert Professor Pierre de Vos believes some of the regulations seem to have been crafted without taking account of the fact that large numbers of South Africans do not live in houses and apartments in the suburbs.
Writing on his Constitutionally Speaking blog, he says the regulations have a ‘disproportionately’ negative impact on poor people and especially people living in informal settlements – which may constitute unfair discrimination in contravention of the Constitution.
* Some of the regulations are unnecessarily inflexible and do not provide for legally required exceptions, especially the regulations that ban the movement of people. The regulations purport to circumvent court orders, thus trenching on the separation of powers doctrine and interfering with the independence of the judiciary.
* The provisions regulating who can provide an essential service and who cannot may unfairly discriminate against informal traders on the basis of race in contravention of section 9(3) of the Bill of Rights. Assuming that the regulations either prohibit or make it very difficult for informal traders to continue selling essential goods, the regulations indirectly discriminate against informal traders on the basis of race.
The Constitutional Court explained in City Council of Pretoria v Walker that indirect discrimination occurs when a legal rule disproportionately impacts on the members of a group protected from discrimination. De Vos adds it is not clear why the regulations make it impossible for informal traders to continue with their business, but allow formal traders to do so.
* While section 27(2)(i) of the Disaster Management Act explicitly authorises the government to suspend or limit ‘the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area’, it does not authorise the prohibition on the sale of any other goods.
‘The ban on the sale of all non-essential goods may therefore be invalid,’ says de Vos.
He adds that while section 27(2)(n) authorises the government to take ‘other steps that may be necessary to prevent an escalation of the disaster, or to alleviate contain and minimise the effects of the disaster’, it is not clear that this ‘catch-all’ provision can be used as authority for the ban on the sale of all non-essential goods.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
