From Muhammed and others to De Beer and others: striking the balance between public health measures and human rights during Covid-19 era in South Africa

Abstract

This article evaluates the approach by the South African Courts concerning the constitutionality of the declaration of national disaster and the Covid-19 regulations. It sets the tone by evaluating the approach in Kenya in contrast with the South Africa position. A look at the rising tensions between human rights protection and public law informs this exercise. While Kenya uses a precautionary approach to uphold the constitutionality of the Curfew order, South Africa seems to oscillate between the proportionality and the rationality test. A call for clarity in the Court’s reasoning on rationality is proposed.