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The police should act reasonably and intelligently when exercising their extraordinary statutory powers, without undue embellishment, writes Owen Dean.
Regulations have been issued by the government in terms of the Disaster Management Act to control the spread of the Covid-19 virus.
They were published in the Government Gazette of 25 March 2020. The Disaster Management Act does not suspend the South African Constitution, which continues to apply.
The Act and the Regulations must therefore comply with the provisions of the Constitution and are invalid to the extent that they do not do so. So must the enforcement of the Regulations.
The powers of the police and the law enforcement authorities under the Regulations are subject to the same constraints.
Chapter 2 of the Constitution comprises the Bill of Rights.
The law of the country must uphold these rights.
Regulation 11B(1)(a)(i) of the Regulations provides that a person may not leave his/her place of residence "unless strictly for the purpose of ... obtaining an essential good or service".
Annexure B, Regulation A1(i) and 3(i), respectively, define "Essential Goods" to mean inter alia "any food product, including non-alcoholic beverages", and "Medical and Hospital supplies".
It must be pointed out that these provisions do not stipulate where and in what circumstances these goods must be obtained.
They provide a blanket authorisation to the public to obtain them, notwithstanding the restrictions on movements imposed by the Regulations. The goods may accordingly be obtained anywhere and in a variety of circumstances.
Two instances have recently come to the fore where the police have exceeded their powers of enforcement of these provisions.
First, there was an instance in Somerset West where the police imposed a stiff fine on an individual who informed them when asked to justify leaving his house that he was en route to obtain prescription medication from a pharmacy and do grocery shopping.
When asked to produce a prescription he advised that the medication was chronic and the prescription was held on file at the pharmacy. He was, however, able to produce a grocery shopping list.
Because he was unable to produce a prescription a fine was imposed.
Second, a pensioner living in Cape Town had travelled 3.7 kilometres to do her grocery shopping at Woolworths, her longstanding supplier of choice, and had not visited her nearest shopping centre (a 2 kilometres distance) because there was no Woolworths there.
The policeman who accosted her imposed a hefty fine on her on the basis that she was obliged to shop at the nearest shopping centre.
The question arises by what right or power, on what basis, can the police lay down the requirement that someone visiting a pharmacy must produce a prescription (anyone with a modicum of common sense or savvy knows that on-going prescriptions can be registered at a pharmacy) or that a shopper cannot go to the shop of his or her choice to buy groceries.
No reliance in this regard can be by them on the Regulations. Their powers are derived from the four corners of the Regulations. They cannot arbitrarily impose additional requirements.
The individual's right of freedom of movement is a fundamental basic human right enshrined in Section 21 of the Bill of Rights. The Regulations, restricting individuals' right of movement as they do, impinge upon that right.
However, Section 36 of the Constitution allows for fundamental human rights to be limited in certain circumstances.
The limitation must be made in a law of general application and must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Furthermore, certain other circumstances must be taken into account, including the nature of the right, the nature and extent of the limitation and the relation between the limitation and its purpose.
These limitations apply not only to the validity of the legislative provision in question but also to its application.
While I accept for present purposes that the Regulations as a whole might pass this test and thus amount of a valid limitation on a fundamental human right, the same cannot be said for the manner of application of the regulation in question in these instances.
In my opinion the police’s application of the relevant "essential goods" authorisation in these instances defies common sense and woefully fails the test of being reasonable and justifiable.
The police clearly violated the individuals' basic human right of freedom of movement and acted unlawfully. They acted outside the scope of the powers conferred upon them by the Regulations.
Doubtless many other similar cases have occurred.
Police officers ought to be admonished to act strictly within the powers granted to them by the Regulations and to refrain from violating the basic fundamental human rights of the public.
Above all they should act reasonably and intelligently when exercising their extraordinary statutory powers, without undue embellishment.
- Owen Dean is Emeritus Professor, Law Faculty, Stellenbosch University.
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