CIVIL LIBERTY DURING A STATE OF DISASTER OR EMERGENCY IN SOUTH AFRICA THE CASE OF THE CORONAVIRUS PANDEMIC Martin van Staden 1 LEGAL POLICY BRIEF APRIL 2020 First edition – 9 April 2020 CIVIL LIBERTY DURING A STATE OF DISASTER OR EMERGENCY IN SOUTH AFRICA THE CASE OF THE CORONAVIRUS PANDEMIC Martin van Staden LL.B. Head of Legal (Policy and Research) Rule of Law Project Free Market Foundation
[email protected] 2020 © Free Market Foundation The views expressed in this brief are those of the author(s) and not necessarily those of the Free Market Foundation. 2 EXECUTIVE SUMMARY The coronavirus lockdown has brought to the fore of public discourse the question of civil liberty during times of public crisis, particularly regarding the “limitation” and “derogation” (or suspension) of South Africans’ constitutional rights in the Bill of Rights. This paper considers this and other questions. There is a crucial difference of degree between the limitation and suspension of rights. When a right is limited, its essential nature remains intact. It is exercisable subject to provisos. When it is suspended, its essential nature is extinguished. It is no longer exercisable. The restrictions on freedom of movement (which in most cases outright prohibits movement except under strictly delineated circumstances) and trade amount to a suspension rather than a limitation of those constitutional rights. The restrictions on freedom of assembly and association (gatherings, funerals, etc.) also get very close to, if not crossing that line already. The lockdown is a very severe incursion on constitutional rights, and goes far beyond what section 36 of the Constitution, which provides for the limitation of rights, contemplates.