Covid-19 and the Constitution
22 October 2020
Globally and in South Africa the pandemic crisis of 2020 continues to test the solidity of the foundations of many aspects of 21st Century society. This is particularly evident in the economy, communications and culture, but it also raises many legal questions, especially concerning the extent of the powers of the state and the government in exceptional circumstances.
The South African government received praise, for instance from the World Health Organization, for the manner in which it had responded to the crisis, and it would be churlish to deny that South Africans generally have much to be grateful for, given the relatively positive results that may be ascribed to some of the drastic measures taken by the government to curb the spread of the virus.
On a different level, however, one cannot but be astounded by the severity of the effects of the anti-virus measures. Disruption was the order of the day in, among many other instances, the operation of virtually all organs of state, ranging from Parliament, the courts and the public service, to public education, police services and the military. No doubt it can be expected that this pandemic will, as other plagues and epidemics in the past, eventually peter out – until the next one occurs.
Against this background the question must be asked what we can learn from our experiences of 2020. Confronted by the sudden and severe crisis, the government had at least two responses to choose from: declare a state of emergency within the clear confines of the Constitution and the State of Emergency Act of 1997 (SEA), or take another route, much less clearly defined, namely engaging the Disaster Management Act of 2002 (DMA), and then improvising on it. The choice taken was the latter.