Lockdown limits on rights must be justifiable
‘We are not living in a State of Emergency. Rights have not been suspended. That means the duty of government Ministers to justify the limitation of rights in accordance with the limitation clause have also not been suspended. Such justifications must not be bizarre and spurious, but must be fact-based, rational and truthful. When no justification is offered, or where the justification appears to be irrational, it erodes trust in government and threatens the efficacy of the lockdown. It also renders the regulations open to constitutional challenge and invalidation.’
Writing on his Constitutionally Speaking blog, Professor Pierre de Vos says he believes there are at least two grounds on which the validity of lockdown regulations could be challenged, depending on whether a ‘plausible and truthful justification’ had been provided:
* To comply with the principle of legality, all regulations must at the very least be rationally related to the stated aims of the declaration of a national disaster. If they are aimed at achieving another purpose, like lowering the crime rate, or promoting public health concerns not directly related to the Covid-19 crisis; or if there is no rational link between what the regulations actually say and their stated purpose – they would not meet the minimum requirement for validity.
* Where a regulation limits rights guaranteed in the Bill of Rights, the regulation will only be constitutionally valid if it is justifiable in terms of the limitation clause. De Vos notes many of the lockdown regulations limit rights protected in the Bill of Rights. Thus, government must provide both factual material and policy considerations to justify the limitation, as explained by the Constitutional Court in Moise v Greater Germiston Transitional Local Council.
De Vos says some of the lockdown regulations are likely to run into legal trouble because the government would not be able to provide a plausible factual basis for the assumptions underlying a regulation; or because there is no obvious link between the regulation and its stated purpose.
‘But the most serious problem might well be that the purpose of the lockdown could have been achieved by regulations that infringe on the rights of citizens in a less drastic manner,’ he says.
The nightly curfew between 8pm and 5am, for example, clearly limits the right to freedom of movement guaranteed in the Bill of Rights ‘in quite an extreme manner’.
De Vos says it is unclear that there is a factual basis for this regulation, and it is ‘probably’ unconstitutional.
On the restriction on exercise to the period from 6am and 9am, De Vos says it is aimed at making it easier to police, and that ‘mere convenience will never justify a radical limitation on a constitutional right’.
He says there is no factual basis for the assumption that more people will get infected if they exercise after 9am.
De Vos adds: ‘The aim must always be to impose only such limits that are directly linked to the purpose of the lockdown and to limit rights as little as possible.’
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.
