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Policy Brief: Constitutional and social justice observations regarding alert Coronavirus COVID-19 Level 4 regulations


In our previous submission as part of a group of social justice practitioners, academics and civil society activists, we indicated that “going forward we aim to assist the government in monitoring the implementation of the COVID-19 policies to ensure responsiveness to the day-to-day realities of the most vulnerable communities in all Municipal Wards to ensure implementation does not undermine the achievement of equality, human dignity and advancement of human rights and freedoms for all while forming a social accountability bulwark against corruption”. Although this submission is made by the Chair in Social Justice at Stellenbosch University, the input has been sourced from members of the newly formed Social Justice and Coronavirus COVID-19 Policy and Relief Monitoring Alliance (SCOPRA). Key among these are Cat Walker, Maricia Froneman and members of the Thematic Working Group on Policy Tracking and the Rule of Law whose names are included in the first policy brief we sent to government on the Coronavirus COVID-19.

When you issued the latest Regulations in terms of the Disaster Management Act 57 of 2002 (DMA), indefinitely extending the lockdown imposed by government to contain the spread of the Coronavirus, I announced an intention to raise some questions. The questions are raised considering the fact that the DMA regulations limit certain human rights, as entrenched in chapter 2 of the Constitution of the Republic of South Africa, 1996 (Constitution), for the duration of the State of Disaster, which was declared by the President on 15 March 2020. The regulations further have implications for democratic governance, the rule of law and ultimately, sustainable peace.

First, I would like to convey our appreciation to you, President Ramaphosa and the government for attuned leadership characterised by policy agility and responsiveness to the global public health threat entailed in Coronavirus COVID-19 (COVID-19). We also appreciate efforts made to limit the social injustice implications of the disaster management Directions, Guidelines, Statements and By-Laws issued since March 18, mainly intending to restrict the movement of people and goods.

That commerce had virtually ground to a halt for many is indisputable, but the truth is some bore the brunt more than others. In this regard, the President’s announcement of the Social Relief and Economic Support Package (SRESP), deserves resounding applause. We further realise that the relief offered to those in need would have been more substantial had it not been for the historical legacy of poverty and inequality from our unjust past, compounded by corruption, including state capture, missed opportunities for transformative constitutionalism and administrative ineptitude, incorporating wasteful expenditure by State-Owned Enterprises.

We further appreciate the constraints under which you and your colleagues had to make policy choices to contain the spread of COVID-19, prevent a deluge of hospitalisations beyond the capacity of our health system while protecting the public from predatory business practices. Central to those constraints are imperatives relating to protecting human lives while ensuring that livelihoods are not unduly destroyed. That on its own has implications, perhaps not immediate, for lives.

Read the rest of the statement

You can download the full statement and policy brief here.

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By Chair in Social Justice team
Published 07 May 2020

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About the Chair:

Professor Thulisile “Thuli” Madonsela, an advocate of the High Court of South Africa, is the law trust chair in social justice and a law professor at the University of Stellenbosch, where she conducts and coordinates social justice research and teaches constitutional and administrative law.

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