Abstract
The purpose of the rule of law, entrenched as supreme in section 1(c) of the South African Constitution, is to guard against tyranny. If the rule of law is conceptualised as a meta-legal doctrine that is meant to permeate all law in the promotion of certainty, predictability and accessibility, in the interests of safeguarding constitutional rights, this makes sense. Yet, the COVID-19 pandemic has seen the reach of state power expand at the expense of these rights. South Africa's COVID-19 lockdown, and within at least its first five months carrying the endorsement of the courts, has made a mockery of the rule of law so conceived. This article considers the constitutionality of South Africa's COVID-19 lockdown against the backdrop of the constitutional rights limitation regime within the broader theoretical framework of constitutionalism and the rule of law. This analysis is conducted in the context of some early challenges brought against the lockdown in four High Court cases. The article concludes that the South African government, with the partial endorsement of the courts, has strayed beyond the bounds of the Constitution and engaged in unjustified violations of constitutional rights.
Highlights
It is in the nature of the state to continuously wish to expand its power.[1]
If the rule of law is conceptualised as a meta-legal doctrine that is meant to permeate all law in the promotion of certainty, predictability and accessibility, in the interests of safeguarding constitutional rights, this makes sense
The COVID-19 pandemic has seen the reach of state power expand at the expense of these rights
Summary
It is in the nature of the state to continuously wish to expand its power.[1]. The course of South African history since the adoption of the South African Constitution[2] has been illustrative of this fact.[3]. 7 As of 18 March 2020, the South African government has issued a multitude of regulations pursuant to the Minister of Cooperative Governance and Traditional Affairs having declared a state of national disaster in terms of sec 27(1) of the Disaster Management Act 57 of 2002 on 15 March 2020. These regulations collectively are popularly referred to as the ‘COVID-19 lockdown’ or the ‘lockdown’, and will be referred to in this article. The article enquires as to whether government has acted in contravention of the Constitution, despite case law to the contrary, and, if so, recommends certain measures to rectify such conduct for future disaster situations
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