The Role of the Judiciary to Construct a Concise and Balanced Judgment on the Right to Life vis-à-vis Economic Life of Persons: Some Thoughts on Mohamed v President of the Republic of South Africa 2020 (7) BCLR 865 (GP) and De Beer v Minister of Co-operative Governance and Traditional Affairs 2020 (11) BCLR 1349 (GP)

Abstract

This article examines the centrality of the judicial response to government’s constitutional obligations in balancing competing rights in the protection of the right to life vis-à-vis the preservation of human livelihood when government declares a state of emergency. The objective is to decipher whether the judgments managed to properly balance the competing interests during emergency times. The challenge to the regulations was their alleged failure to meet the minimum standard of reasonableness and justification envisaged by the Constitution, resulting in adverse effects on people’s fundamental rights. Consequently, the judiciary was called to play its indispensable role and resolve the legal discords. The article argues that the protection of life vis-à-vis economic livelihood are interdependent as they (in)directly influence the enjoyment of each right. The argument is built on the regulations that restricted the movement of persons adopted with the intent to “flatten the curve” as a result of the COVID-19 pandemic. The article imparts that balancing constitutional rights is imperative not only when emergency times arise. It also posits that it is not how an individual person portrays a regulation in a particular circumstance. Rather, what is key is whether those on the receiving end are willing to appreciate the reason behind a policy and its regulatory framework. It is also whether the imposition of the law on others is done with care and sensitivity.