Limiting rights is becoming a bitter pill for citizens to swallow

A visit to an Islamic mosque proves the observance of Covid-19 lockdown rules. Picture by: Timothy Bernard/African News Agency

The case of Muhammed Bin Hassim Mohamed vs The President of Republic of South Africa (Case number: 21402/20), looked at the question of whether or not regulations prohibiting religious gatherings, issued in terms of the Disaster Management Act of 2002, are reasonable and justifiable in the circumstances under which they were promulgated.  

The applicants stated that during the period of Ramadan, barring Muslims “from attending Mosque evokes a particular pain which every Muslim around the country must feel.” The applicants further argued that regulations were relaxed for taxi drivers from only 50% to 75% of capacity and gatherings of not more than 50 persons are allowed for funerals. The applicant’s main contention was the regulations criminalized the performance of a compulsory act of worship.

On 11 March 2020, the World Health Organisation (WHO), recognised Covid-19 as a pandemic. A pandemic is described as an epidemic of disease that has spread across a large region such as multiple continents or worldwide and affecting a substantial number of people. To date, there are 3,76 million confirmed cases of infections; 1,25 million of confirmed recoveries and 264 000 confirmed deaths of Covd19.  On 23 March 2020, South Africa has declared the National State of Disaster. South Africa has to date, 7808 confirmed cases of infections, 3153 confirmed cases of recovery and 153 confirmed deaths of Covid-19.

It has been argued that measures to prevent the spread of Covid-19 has and will continue to devastate South Africa’s already ailing economy.  However, more than this, it has also disrupted citizen’s way of life and has forced citizens to accept measures that would otherwise have been viewed as draconian.  

Rights in the Bill of Rights although separated by various sections are closely related to each other.  Limiting the one limits other relatable rights.  For example, limiting one’s freedom to associate and freedom of movement impacts one’s right to practice freedom of religion, belief and opinion.  Inevitably, it impacts the right to dignity. This one could argue falls within the “inner sanctum of the person”. In the constitutional case of the Minister of Justice and Constitutional Development v Prince (2018), Justice O Reagan stated that there is a close link between human dignity and privacy in our constitutional order. The right to privacy recognises that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion. This right serves to foster human dignity.  

These rights are regarded as first generations rights and inalienable. First-generation simply means that these rights were the first to be recognised by law.  Inalienable means that the right cannot be taken away from a person or given away by the possessor.  However, the section 36 of the Constitution makes provision for these rights to be limited when it is just and reasonable to do so in open and fair democracy based on principles of human dignity, freedom and equality.

As many of these rights fall within the “inner sanctum of the person”, the longer the lockdown persists, the harder it may become for citizens to swallow this bitter pill.  Coupled with the uncertainty of the future, citizens are going grapple with the loss of financial security and the worrying effects that come with it.  For many religion and belief plays a central role in this area of one’s life. Religion and belief, are at the core of the “inner sanctum” of their person, where intimate decisions regarding one’s life flow from.

The court analysed and balanced the constitutional rights of freedom of religion, freedom to associate, the right to life, and the right to access to health care in order to determine whether the prohibition of religious gatherings was reasonable and justifiable.  Balancing of rights entails an analysis of all relevant considerations, the extent of the limitation and the nature and importance of the infringed right, compared to the purpose, importance and effect of the infringing provision.

The court did not delve into how the regulations impacted the “inner sanctum of a person”. Perhaps this was because of the groundswell and overwhelming evidence of how easily the virus is spread, the number of infections and deaths globally and that South Africa was only at the early stages of testing for the virus.  

The case turned on the fact that, many infected with the virus do not display symptoms and that the virus remains alive for hours on outside surfaces.  

The risk of the virus spreading was too high and allowing gatherings would defeat the government’s efforts to curb the spread of the virus.  The concern of overwhelming the “already fragile health system” was paramount as this would jeopardise the right to access to healthcare and inevitably the right to life. The court also pointed out that many businesses have had to close, workers in the informal sector such as waste pickers, domestic workers, etc have not been able to work and left without an income and therefore no food. Many learners do not have access to online learning and therefore their right to education has been compromised.

In balancing the various rights, the court concluded that the regulations strike a delicate balance between limiting social contact and possibly allowing the spread of the virus on the one hand and meeting the short and long term needs of the people of South Africa.  

This means that the right to life and access to healthcare trumped the rights to freedom of association, movement and religion. As South Africa is at the early stage of testing for the virus and until the infection rate reduces, rights to access to healthcare and right to life are likely to trump any other right in the Bill of Rights.

Going forward, as the curve of infections rate flattens or reduces, small groups of religious gatherings should be considered. Religion and belief are at the core of the inner sanctum for many citizens. This may bring comfort and ease to the reality that Covid-19 has wrought on South Africa as a country and its citizens.