STUDENT NUMBER : 41369823

NAME : AMANDA

SURNAME : HONWANA

MODULE : IURI275

Contents
1.1 Introduction.........................................................................................................2
1.2 The applicable legal framework ........................................................................2
1.2.1 The relevant rights infringed...........................................................................................2
1.2.2 Application of the Bill of Rights.......................................................................................4
1.2.3 Standing as a requirement.............................................................................................4
1.2.4 Limitation of rights..........................................................................................................5
1.2.5 The prospects of success and the alternative remedy...................................................5
1.3 Conclusion...........................................................................................................6

1.1 Introduction

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The covid 19 can be regarded as one of the most devastating pandemic the people of
South Africa have ever seen. Through this period of the pandemic many people died
because of the virus while others got very sick. The president of South Africa on
March 23 March 2020 announced for the first time in South Africa a state of
emergency which meant that the whole country was on lockdown from the 27 of
March 2020 with strict rules. The lockdown rules provided for the prohibition of
traveling abroad, prohibition of any sort of gatherings, the ban on the sale of tobacco
and cigarettes and the implementation of curfews from 8pm till 5 am in the morning.
The lockdown rules and regulations were in terms of the Disaster Management Act
2002 and the Amendment of regulations issued in terms of section 27(2). Through
these difficult rules the rights of the people of South Africa were in question of
whether such rules or regulations trample on human rights as contained in the
Constitution of the Republic of South Africa, 1996 (Constitution) or the rules. To
answer this question the assignment will look at the relevant provisions in the
Constitution to determine which rights are infringed by the regulations. The
assignment will also try to determine the application of such rights and also determine
if such rights can be limited. The assignment will also look at how one can approach
the court when the rights contained in chapter two of the Constitution are infringed
and what remedies can be issued by the courts to address such violation of rights.
The assignment will end with a conclusion where the main question will be answered
based on the application to the law.

1.2 The applicable legal framework

1.2.1 The relevant rights infringed

The fundamental rights that seem to be violated by the restrictions or regulations can
be found in chapter two of the Constitution. The first right to be noted is the right to
equality. The right provides that everyone is equal before the law and that the law
must protect all equally.1 Under the lockdown it was seen that some people were
allowed to conduct their affairs while others were denied such opportunities. This can
be noted where some people were not allowed to travel to work while others
continued.

1
Section 9 of the Constitution.

2
with their employment The right to life as contained in section 11 of the Constitution
was under threat as the police where very brutal to transgressors of the regulation
imposed by the president. The right provides that everyone has the right to life. 2This
was evident in Khosa and Others v Minister of Defence and Military Defence and
Military Veterans3 where Collins Khosa was killed by the South African army.

The right to human dignity can also be applicable as people were forced to vaccinate
and placed in quarantine for a long time. The right provides that everyone in South
Africa has the inherent dignity and the right to have their dignity respected and
4
protected. The right to freedom and security here: the people who smoked or
consumed alcohol were deprived of their freedom to indulge in things such as alcohol
and the sale of cigarettes as they were banned by the president. The right states that
everyone has the right to freedom and security of the person. 5 The right to religion,
belief was infringed as people were not allowed to go to church or their places of
worship due to the restrictions. The right relating to religion provides that everyone
has the right to freedom of conscience, religion, belief and opinion.6 One important
right that meant a lot to South Africans was the right to freedom of trade, occupation
and profession.7 This right allows the people to make a living by selling or working.
Through the lockdown restrictions people were told to stay indoors. Right to
education,8 was also violated as the schools were closed. The right to freedom of
movement and residence,9 can also be seen to have been infringed as the
movement of the people of South Africa was limited due to the restrictions.

2
Section 11 of the Constitution.
3
(21512/2020) [2020] ZAGPPHC 147; 2020 (7) BCLR 816 (GP); [2020] 3 All SA 190 (GP); [2020] 8 BLLR
801 (GP); 2020 (5) SA 490 (GP); 2020 (2) SACR 461 (GP) (15 May 2020) 4 Section 10 of the
Constitution.
5
Section 12 of the Constitution.
6
Section 15 of the Constitution.
7
Section 22 of the Constitution
8
Section 29 of the Constitution.
9
Section 21 of the Constitution.
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1.2.2 Application of the Bill of Rights

The application of the above rights is contained in section 8 of the Constitution. The
rights apply to all the law in South Africa this include the regulations made by the
president.10 The rights also bind all natural and juristic persons. 11 Thus one can say
that the Bill of Rights applies in two ways vertically and horizontally. The vertical
application of the Bill of Rights includes the state and its citizens while horizontal
application is between the citizens with each other or any form of private body. In this
assignment the vertical application of the Bill of Rights will be necessary as the
violation of the rights includes the state and its citizens who feel that the state is
infringing on their fundamental rights.

1.2.3 Standing as a requirement

Standing is important when it comes to approaching a court, in other times it may

happen that a person has a good case but lacks the necessary standing in order to
be heard in any court of law. Locus standi basically means the right of a party to
bring a matter to court. In South Africa locus standi is tested in two ways firstly that
the party concerned in the matter has a direct or substantial interest in the matter
and whether the party has legal capacity to litigate. The first test is enforced by
section 38 of the Constitution which provides that any one listed in this section has
the right to approach a competent court alleging that a one of the rights in the Bill of
Rights has been infringed.12 The list envisaged here includes anyone acting in their
own interest,13 anyone acting on behalf of another person who cannot act on their
own name.14 Any one acting as a member of or in the interest of a group or class of
person.15 Anyone acting in the public interest and lastly an association in the interest
of its members.16

10
Section 8(1) of the Constitution.
11
Section 8(2) of the Constitution.
12
Section 38 of the Constitution.
13
Section 38(a) of the Constitution.
14
Section 38(b) of the Constitution.
15
Section 38(c) of the Constitution.
16
Section 38(d) (e) of the Constitution.

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1.2.4 Limitation of rights

The rights as contained in the Bill of Rights are not absolute but may be limited. The
limitation clause as provided for by section 36 of the Constitution provides that such
rights in the Bill of Rights may only be limited in terms of law of general application
and that such limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom. 17 The Constitution achieves
this by taking into account the nature of the right to be limited, importance if the
purpose of the limitation nature and extent of limitation, and the relation between the
limitation and its purpose and less restrictive means that can be used to achieve
such purpose.18

1.2.5 The prospects of success and the alternative remedy

The prospects of success will highly depend on the limitation of the rights in
questions, if the rights can be limited then it will be highly impossible for the
applicants to win the case. If the rights can not be limited due to the fact that such
limitation is not reasonable or justifiable then the applicants will stand a great chance
of winning the case. The appropriate remedy that will be suitable in this case should
be decided in accordance with section 172 Constitution which provides that when
dealing with a constitutional matter the court may make an order that is just and
equitable. One of the orders which the court may make is declaratory order which,
will compel the state to act in certain way. In this regard the state may be directed to
comply with Constitution especially section 2 of the Constitution.

1.3 Conclusion

When looking at the relevant legal principles one can instantly say that the lockdown
regulation was a violation of certain rights in the Constitution and on the other one
can say that the rules were made to contain the spread of the virus. The first
assumption is that the regulation was not applied equally as some were allowed to
carry on with their business while the rest of the population was left to oblige with the
law. Equality is one of the founding values of the Constitution. 19 This means that the
right must be
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17
Section 36 of the Constitution.
18
Rautenbach 2014 PELJ 2242.
19
Section 1 of the Constitution.

protected, respected and fulfilled by the state. 20 In light of the above it can be noted
that the law was not applied equally resulting in the direct infringement of the right.
The right to life as already mentioned above was at issue and infringed upon as the
police used irregular measures to ensure that the people comply with the regulations.
Some of the people were subjected to harsher treatments where the police and
defense force would use destructive force. This resulted in the potential infringement
of the right to life. Another issue which shows that people’s rights were violated is
that the people were not allowed to smoke nor consume alcohol. Furthermore, the
people were also not allowed to go to church.

From above it can be seen that the rights contained in the Bill of Rights were
infringed upon. Section 8 of the Constitution expressly states that the Bill of Rights
applies to all law and binds all natural and juristic persons. This practically means
that the Disaster Management Act and the regulations must be made to protect and
fulfil the objects in the Bill of Rights. Section 2 of the Constitution provides that all law
must be consistent with the Constitution and that any law that is not consistent with
the Constitution may be declared invalid. 21 One of the arguments mainly raised by
the state was that rights of the citizens of South Africa can be limited in instances like
this. The Constitution has provided for the requirements that must be met before the
right can be limited. If the right to life is limited then the lives of the South African
people are in danger and people may lose their life. Furthermore, limiting the right to
equality and dignity only defeats the objects of the Constitution as those rights are
included in the founding values of the Constitution. This only opens the door for
anyone to approach the court and allege that some rights in the Bill of Rights have
been infringed by the rules and regulations. In light of the above Mrs Yolanda Ndlovu
may approach the court in terms of section 38(b) and (c) of the Constitution. The
prospects of success are likely to favor the applicants as this is a constitutional matter
dealing with the infringements of rights. 20 Section 7(2) of the Constitution.
21
Section 2 of the Constitution.

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Bibliography

Literature

Rautenbach IM “Proportionality and the limitations clauses of the South African Bill of
Rights” PELJ 2014

Legislation

Constitution of the Republic of South Africa, 1996

Disaster Management Act 2002

Case law

Khosa v Minister of Defence and Military Defence and Military Veterans (21512/2020)
[2020] ZAGPPHC 147; 2020 (7) BCLR 816 (GP); [2020] 3 All SA 190 (GP); [2020] 8
BLLR 801 (GP); 2020 (5) SA 490 (GP); 2020 (2) SACR 461 (GP) (15 May 2020)

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