"It is the Poor Who Will Suffer the Most": The Discriminatory Impact of Covid-19 Lockdown Restrictions on the Poor in South Africa

Abstract

In 2020 the Coronavirus disease 2019 (COVID-19) spread across the globe at a seemingly unstoppable rate. Countries implemented various lockdown regulations to curb the spread of the virus. South Africa was no different and went into lockdown on 26 March 2020 under a five-tier risk-adjusted strategy. Under the regulations, all non-essential economic activity was immediately suspended. This had dire financial consequences for all in the country. However, statistics show that the poorest and most vulnerable in society have borne a disproportionate brunt of the impact of the economic restrictions. In this context this article asks whether the economic restrictions implemented under the lockdown regulations (as promulgated in terms of the Disaster Management Act 57 of 2002) discriminated unfairly on the grounds of poverty. This is in line with a 2018 decision by the Equality Court of South Africa that poverty constitutes unlisted grounds for discrimination as envisioned under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Social Justice Coalition v Minister of Police 2019 42 SA 82 (WCC)). In this article, the test for unfair discrimination laid down in Harksen v Lane 1998 1 SA 300 (CC) is applied to the economic restrictions implemented under the lockdown regulations to determine whether they constitute unfair discrimination. It is argued that a case of indirect discrimination on the grounds of poverty could be made. However, determining the justifiability (in terms of section 36 of the Constitution of the Republic of South Africa, 1996) of the regulations would require a thorough analysis based on expert evidence. Nevertheless this article lays the foundation for an actionable case that could be brought before a court against the government of South Africa on behalf of a specific community to determine whether the economic restrictions were unfairly discriminatory on the grounds of poverty. This would allow for the consideration of a suitable remedy. This could include the formulation and implementation of development programmes to rectify the harm caused.