Covid-19-related criminalization in South Africa

• Published date: 04 March 2021
• Citation: (2020) 33 SACJ 684
• Pages: 684-706
• DOI: https://doi.org/10.47348/SACJ/v33/i3a9
• Author: Lubaale, E.C.
• Date: 04 March 2021

COVID-19-related criminalisation

in South Africa

EMMA CHARLENE LUBAALE*

ABSTRACT

COVID-19, a virus rst identied in Chi na, has since December 2019

wreaked its fair share of havoc acro ss the globe. It has claimed hund reds

of thousands of lives, with no conti nent spared. In March 2020, t he World

Health Organisat ion declared the virus a g lobal pandemic and proceeded

to call on states to take urgent me asures to contain its spread. Governments

across continents heeded t he call by rolling out measure s ranging from

lockdowns to regulations givi ng effect to the measures adopted. O n

15March 2020, South Afr ica declared a state of national d isaster and days

later, a national lockdown in response to the COVID -19 pandemic. This

lockdown was followed by regulations, all geared towar ds containing

the further spr ead of this virus. C riminal law came i nto play in dealing

with the violators of the COVID-19 Regulations and whi le these measures

were well-intentioned, multiple issues have hard ly been examined from a

crimina l law perspective. The purp ose of this article is to d emonstrate the

limitation of cr iminalisation a s a response to health issues. T he article does

this by engaging with pre vious failed attempts to rely on cri minalisation

to address public health issues; unde rscoring the effect that so me of the

regulations have on the cri minal law principle of legal ity and bringing

to the fore the unintended conseque nce of criminali sing poverty in a

society that is al ready unequal. In engaging wit h these three themes, t he

analysis provides a context th rough which COVID-19-related crimi nalisation

should be viewed and affords reasons why t he criminal isation approach

is counterproductive and should not be con sidered in dealing with f uture

pandemics. The conclusions dr awn are instruc tive to other countries in

light of the fact that cri minalisation i n the wake of the COVID-19 pandemic

was not unique to South Af rica.

1 Background

Natural disasters and pandemics are a common feature globally.

They have ranged from Ebola in the Democratic Republic of Congo,

environmental disasters such as res in Australia, to hurr icanes such

as the Hurricane Katr ina in the United States of Amer ica. Different

countries have been affected and many continue to suffer from one

calamity or another. The most recent of these ca lamities have manifested

* LLB (Makerere) LLM (Preto ria) LLD (Pretoria), Associate P rofessor, Faculty of Law,

Rhodes Universit y.

684

https://doi.org/10.47348/SACJ/v33/i3a9

(2020) 33 SACJ 684

© Juta and Company (Pty) Ltd

itself in the form of a virus. The end of 2019 and early months of 2020

brought visibility to COVID-19, a virus that was rst identied in China,

and now wreaks havoc globally. COVID-19 is not just unprecedented in

terms of the health impact it has h ad on human life, it is also unparalleled

in terms of the various government responses. The COVID-19 pandemic

is a public health issue and as such, impacts directly on health. Health

is a fundamental right g uaranteed under both international law and the

national laws of various states, including South Africa’s.1 In terms of

international human rights law, governments are under the obligation

to protect this right, consequently, at the heart of most governments’

responses has been the need to ensure that those within their

geographical jurisdict ions remain healthy.2 The interventions by the

various governments have all been geared towards ensur ing that the

right to the highest attainable standard of health is guaranteed.

Guaranteeing the right to health, like al l other rights, may sometimes

require the limitation of some freedoms, provided that such limitation

is justiable in a free and democratic society.3 Some of the responses

to the COVID-19 pandemic have required some freedoms to be limited.

In the context of South Africa, for example, the Regulations enacted

in response to this pandemic have had the effect of i mposing some

restrictions on travel across countries and provinces.4 There have

also been restrictions on involvement in certain economic activities,

bans on purchase of some goods including cigarettes and alcohol and

restrictions on movement (of course subject to certain exceptions).5

Aside from these restrictions, governments have also made concerted

effort to contain this vi rus through encouraging responsible living. In

this regard, emphasis has been placed on strategies such as physical

distancing, mask-wearing, hand-washing and self-isolation for those

with symptoms of the virus. To ensure compliance with some of the

regulations enacted to contain this pandemic, South Africa, like many

other governments, has also had recourse to criminal sanctions and

penalties.6 The criminalisation approach has taken two dimensions –

1 On the right to health , see art 12 of Internat ional Covenant on Economic, So cial

and Cultural R ights (ICESCR) 1966; OHCHR ‘C ESCR General Com ment No. 14 on

the Right to the Highe st Attainable St andard of Health (A rt 12)’, adopted at the

Twenty-Second Session of the Com mittee on Economic, Social and Cult ural Rights,

on 11August 2000.

2 Ibid.

3 See s 36 of the Consti tution of South Af rica 1996 on limitat ion of rights.

4 See also regulat ions issued in terms of s 27(2) of the Disaster Man agement Act 57 of

2002, GG 43107, GN 318, 18 March 2020 (Level 5 reg ulations); regulations issued in

terms of s 27(2) of the Disaster Ma nagement Act 57 of 2002, GG 43258, GN R 49 0,

29 April 2020 (Level 4 reg ulations).

5 Ibid.

6 See eg Regulation 11 of Level 5 regu lations and Regulation 14 of Level 4 regulation s.

COVID-19-related criminalisation in South Africa 685

https://doi.org/10.47348/SACJ/v33/i3a9

© Juta and Company (Pty) Ltd