By Jason Demitrios
The views expressed in this article are the author’s own and do not necessarily reflect Salaamedia’s editorial stance. The article does not serve as legal advice.
Due to the Covid-19 outbreak in South Africa, a state of National Disaster was declared on 15 March 2020. A ban was placed on the sale of tobacco and alcohol during the lockdown until 16 April 2020, infringing on the following rights as per the Constitution of the Republic of South Africa, namely the right to freedom of assembly (section 17), association (section 18), freedom of movement (section 21), the right to practice your profession as well as to trade freely (section 22). Rather severe not so? Therefore it begs the question: Is it legally justified?
The short answer is YES, but before you bring out the pitchfork, let’s unpack this quickly.
For the government to resort to such radical measures they must have a good reason, otherwise, such action would be deemed unlawful and unconstitutional. The answer is to be found in section 36 of the Constitution, also known as the limitation clause. More about this in a minute.
The Minister of Health stated that isolation in our houses and social distancing when out and about buying food, etc. is of the utmost importance because this is the only way to flatten the infection curve, and, therefore, ultimately the death rate in South Africa. We are in the fortunate position to be able to learn from the Wuhan, Italian, Spanish, American and Korean experiences with Covid-19. No argument here. Additionally, tobacco and alcohol are not classified as “essential goods” but rather as “luxury goods”, hence subject to a ban during the lockdown period. Also, the sentiment is expressed by various role-players that tobacco and alcohol would lead to the breakdown of the notion of social distancing when shared between friends in a social setting, hence the ban on both. A further argument put forward by entities pro the ban is that further downstream (two or three months from now), the bloated infection rate may overwhelm the already burdened health system.
As you ponder all of this at home, it is inevitable to question overreach by the government in “taking away our rights” during the lockdown. Consider this, however: Government, in utilising its powers for the public good is empowered by section 36 to limit certain personal rights as mentioned above, but the limitation must be qualified. For the limitation(s) to be justified and necessary the following requirements in general must be met:
- It must be in the form of a law of general application, hence the lockdown regulations affecting the public in general; and
- The substance of that law must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
In order to establish whether the law applied is reasonable and justified one has to ask whether such limitation serves an important objective, and yes, it is clear: the saving of lives. Also, is there a balance between the importance of the goal and the extent of the limitation imposed, and is there perhaps a less restrictive way in dealing with the situation? One can argue the point that there is no balance between the goal and the limitation imposed because too many freedoms are taken away, albeit on a temporary basis. But, this is not the time to take a short-term view of the situation as too many lives are at stake.
The Minister of Police, Bheki Cele, also weighed in on this matter. He unequivocally stated that the law shall be imposed without fear or favour. He viewed the ban of alcohol as necessary because it would blunt the effect of crimes committed such as assault, rape, domestic violence, robbery, hijacking, cash in transit heists and so forth. Tobacco is banned because of the social distancing requirement which must be adhered to during this time. So, what is there not to like? On the flip side though, crimes such as smuggling (of tobacco and alcohol) might be on the increase, but surely it outweighs all the other crimes not committed? (Not that I approve of crime in any form or manner).
The conclusion thus is that the lockdown would be difficult to implement and maintain, however, it must be done for the public good. A word of caution though, because of a lack of resources and manpower on the part of the police and the SANDF, lockdown measures would possibly be enforced in a draconian manner in order for all “to come to the party” and “sooner rather than later”. Therefore, give your full support and co-operation to all law enforcement endeavours so that we may all get through this pandemic fairly unscathed and as soon as possible.
Jason Demitrios is a final year law (LLB) student at the University of Johannesburg.
Featured image from iStock via Google.
