By Tyla Dallas
It is almost ironic to celebrate Freedom Day today when our freedoms are so severely restricted under this national lockdown. The Constitution cements —inter alia— that we have the right to freedom of association, freedom of expression, freedom of religion, freedom to engage in a trade or occupation of our choosing, freedom of assembly and, most poignant now, freedom of movement.
However, we are prohibited from many activities we would normally take for granted, such as leaving our homes, gathering in groups, standing closer than 1.5 meters, and having our schools, businesses and religious institutions closed to curb the spread. One may then ask, well, what are our rights during a lockdown? And, does the Constitution allow for such a severe limitation?
It should be noted that there are certain fundamental human rights that cannot be taken away no matter the situation. Your rights to human dignity, equality and life are immutable. Your rights to practice your religion in your home, have access to adequate health care, and have access to information are examples of rights we remain entitled to.
Our freedom rights are intrinsically linked to our political rights, diversity rights, privacy rights, labour rights and socio-economic rights. While we may not be able to enjoy all of the freedoms we are accustomed to, our rights have not been abandoned, but rather some suspended until our country is safe once more.
Section 12(1), read with section 36 of the Constitution allows the limitation of rights granted by the Bill of Rights, where such limitation is reasonable and justifiable. In limiting any right, account must be had to the nature of the right, the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose, and whether less restrictive means are available to achieve such purpose.
Our rights have been limited for the sole purpose of protecting the health and safety of the majority, by flattening the infection rate of COVID-19 to allow our healthcare system to cope with the expected surge of patients. Government is given a wide mandate during a national state of disaster and obligated by Section 7 read with Section 24 of the Constitution to protect the people of South Africa. As such, an array of ‘lockdown regulations’ have been issued to achieve this aim.
These regulations have been vague and problematic at times, with the most recent criticisms claiming aspects of them to be ‘overly restrictive’. When compared to the restrictions applied in other countries, bans on the purchase of ‘non-essential goods’ such as cigarettes, alcohol and even toys do seem excessive. Criticisms are being verbalised by certain forums, such as the Gauteng Liquor Forum, with calls for less restrictive means to be used to protect the people of South Africa from COVID-19.
It is possible that, upon proper constitutional scrutiny, certain rules may be successfully challenged and found to be irrational and unreasonable, and amended on that basis. Only time will tell.
What we can agree on is that the health and safety of all South Africans are paramount and that despite these criticisms, if we reflect on the struggle of those before us —like that of the freedom fighters during Apartheid— our struggles now are meagre in comparison to the injustices of the past in South Africa.
So, this Freedom day, focus on your ‘small freedoms’, stay safe, stay healthy and be kind to one another.