Bill Watch 16/2020 - COVID-19 and the Law : Part 3

BILL WATCH 16/2020

[16th April 2020]

Covid-19 and the Law : Part 3

Introduction

In Parts 1 [link] and 2 [link] of this series we examined the laws that authorise measures to be taken against the Covid-19 pandemic.  In this part we shall focus on particular aspects of the lock-down and the prohibition of gatherings.  Before doing so, however, we have to correct an error we made in an earlier bulletin.

Correction to Bill Watch 15/2020

In Part 2 [link] we were incorrect in saying that members of the Defence Forces were not “enforcement officers” for the purposes of the Public Health (Covid-19 Prevention, Containment and Treatment) Regulations.  They are.  The definition of “enforcement officer” was amended by SI 82 of 2020 [link] to include them, if they have been authorised by their commanding officers to help enforce anti-Covid measures and the President has authorised their deployment in terms of section 213(2) of the  Constitution.  [We presume this was done, but there has been no public announcement to that effect]

Even though members of the Defence Forces are enforcement officers, however, the regulations give them no power to arrest civilians, as we said in our Bill Watch.

The National Lock-down

Section 4 of the Public Health (Covid-19 Prevention, Containment and Treatment) (National Lockdown) Order (SI 83 of 2020) [link] imposes a national lock-down for 21 days, ending at midnight on the 19th April.  During that period:

  • All individuals are confined to their homes, though they are allowed out temporarily to obtain necessary supplies, or to obtain medical assistance, or to engage in an essential service.
  • Most businesses are closed
  • Transport services, particularly for passengers, are severely restricted.

Details of the prohibitions and restrictions imposed during the lock-down are contained in the Order, which can be accessed on the Veritas website [link].

Two points need to be considered:

Is the lock-down reasonable?

It is a well established rule of law that regulations, rules and orders made under an Act of Parliament are invalid if they are not reasonable.  It is presumed that when Parliament gives a Minister power to make regulations it intends the Minister to exercise the power reasonably;  if he or she does not, then the regulations are invalid.  However, what seems unreasonable to one person may appear quite reasonable to another, so courts will not declare regulations invalid unless they are grossly unreasonable;  unless, as was said in an old case, they involve such oppressive or gratuitous interference with the rights of those subject to them as can find no justification in the minds of reasonable people.

The lock-down imposed by SI 83 of 2020 is very stringent indeed.  Everyone in the country, with few exceptions, is supposed to stay at home for 21 days and venture out only in case of necessity and for short distances (no more than five kilometres).  This will cause hardship for everyone, but for the poorer sections of our society the hardship will be drastic indeed because they live from hand to mouth and lack the resources to stay away from work for 21 days.  The Government’s financial assistance for needy families, inadequate as it is, has only just begun to be paid ‒ three days before the lock-down is due to end.

On the other hand, the hardship caused by the lock-down must be weighed against the need to save lives by stopping the COVID 19 pandemic from spreading.  Throughout the world, lock-downs have proved to be the best way of doing that.

Balancing these considerations, can the lock-down be said to be grossly unreasonable?  It is causing hardship to most of us and extreme hardship to many, but it will save the lives of some of us.  Put like that, it is hard to see a court holding that the regulations imposing the lock-down are so unreasonable as to be invalid.  Perhaps the unreasonableness lies in the Government’s failure to provide assistance to those who need it, rather than in the lock-down itself.

Ending the lock-down

According to SI 83 of 2020 the lock-down is to last for 21 days.  It will come to an end at midnight on Sunday the 19th April.

The Government has given no clear indication of whether it will let the lock-down lapse on the 19th or extend it;  or, if it extends the lock-down, whether it will do so wholly or partially, throughout the country or only in some areas.

Time is getting very short for the Government to make a decision, as we pointed out in a bulletin issued earlier today.  People need to know in advance whether they will be free to leave home on the 20th April and go about their business or whether they will face a further lock-down.  Factories and businesses cannot just start up on the instant;  their managers have to know in good time when they can prepare to resume working.

The President has suggested he will make a decision on the 20th April, but by then it will be too late to extend the lock-down:  it will have come to an end and will have to be re-imposed rather than extended.  In any event, the lock-down cannot be extended by presidential announcement.  If the extension is to be lawful, SI 83 of 2020 will have to be amended ‒ and the amendment must be made by the Minister of Health and Child Care, not the President.

Prohibition of Gatherings

The restrictions on gatherings imposed by SIs 77 [link] and 83 [link] of 2020 are not entirely clear.

Section 5 of SI 77 of 2020 (the regulations under which SI 83 was made) states baldly:

“… all gatherings for whatever purpose, are hereby prohibited during the period when [the declaration of Covid-19 as a formidable epidemic disease is in force, i.e. until the 20th May ‒ we shall discuss this later].”

A gathering is defined in section 2 of the SI as an assembly of more than 100 people, whether in the open or in a building;  but the definition allows orders made in terms of section 8 of the SI to reduce the number of people constituting a gathering.

Section 5 of SI 83 of 2020 (the order made in terms of section 8 of the regulations) states that, from the 30th March to the 19th April [i.e. for the period of the lock-down]:

“… no gathering of more than two individuals in any public place are [sic] permitted except in the following cases …”

and then follows a long list of exceptions where up to 50 people can gather to queue for transport or attend a funeral or an apparently unlimited number can gather to do their shopping at a supermarket or food store, wait for treatment at a hospital, etc.  Section 4(1)(h) of SI 83 of 2020, moreover, allows an apparently unlimited number of motorists to queue for fuel.

At first sight SI 77 of 2020 (the regulations) and SI 83 of 2020 (the order) appear to be inconsistent, in that SI 77 bans all large gatherings while SI 83 of 2020 allows them to take place in certain circumstances.  In fact there is no inconsistency.  If the two SIs are read together the position appears to be this:

  • All gatherings of more than 100 people, for whatever purpose, are banned completely until the 20th May.
  • For the period of the lock-down, which is due to end on the 19th April, smaller gatherings of 100 people or less can take place for the purposes laid down in sections 4 and 5 of SI 83, for example:
    • queuing for transport (but not more than 50 people in the queue)
    • attending a funeral (again, not more than 50 people)
    • shopping at a supermarket or retail shop (so long as there are no more than 100 people there)
    • seeking treatment at a hospital (again, no more than 100 people)
    • queuing for fuel (so long as there are no more than 100 motorists in the queue).

In all other cases, while the lock-down is in force no more than two people can be together in a public place, and they must maintain social distancing, i.e. they must keep at least one metre apart.

Open-air markets

At the beginning of this month the President ordered Mbare Musika and similar open-air markets to be opened so that farmers and vendors could earn a living by selling their produce and people in high-density urban areas would have access to food.  However, SI 83 of 2020 has not yet been amended to allow people to leave their homes and go to such markets, nor to impose necessary restrictions on social contact within the markets.  Hence, if more than two people congregate in an open-air market they must be dispersed by enforcement officers under section 5(2) of SI 83 of 2020 ‒ the section gives enforcement officers no discretion in the matter.  If people refuse to leave a market in response to such an order they are guilty of a serious offence under section 5(3) of SI 83.

This is another illustration of how important it is for the Government to act through the law and in accordance with the law, rather than making announcements and issuing instructions that have no legal effect.  As we pointed out in the first of this series of Bill Watches, the fight against Covid-19 does not put the law into abeyance;  it must be conducted with proper regard for the rule of law.

A Note on Formidable Epidemic Diseases

As we noted earlier in this bulletin, the declaration of Covid-19 as a formidable epidemic disease is only temporary.  Section 3 of SI 77 of 2020 declares Covid-19 to be a formidable epidemic disease until the 20th May 2020, though the Minister of Health and Child Care may publish notices in the Gazette extending the declaration for periods of one month at a time.

Why the declaration should be only temporary is not explained, and seems odd.  The Public Health Act defines other diseases such as cholera and typhoid as formidable epidemic diseases but does not fix a time-limit on their status as such.  Why Covid-19 should be different may be clear to epidemiologists but is a mystery to everyone else.

Need for Publicity on the Law

To conclude this bulletin, we urge the Government to publicise, accurately and fully, the measures it is taking to combat Covid-19.  If members of the public are fully aware of what they can and cannot do, and how important it is to comply with the measures for their own protection, they will be much more likely to comply voluntarily.  The Police and Defence Forces too should be instructed on what the law is and how important it is to persuade the public to observe the law, rather than trying to compel compliance through force.

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