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De Man A "'It is the Poor Who Will Suffer the Most': The Discriminatory Impact of Covid-19 Lockdown Restrictions on the Poor in South Africa" PER / PELJ 2023(26) -DOI http://dx.doi.org/10.17159/17273781/2023/v26i0a15506
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 4 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.
Keywords
Poverty; COVID-19; lockdown regulations; unfair discrimination; right to equality; South Africa.
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DOI
http://dx.doi.org/10.17159/17273781/2023/v26i0a15506
The year 2020 will go down in history as the year the human species was reminded of its vulnerability, despite our self-proclaimed technological, economic, and medical achievements. In reaction to the COVID-19 pandemic, countries across the globe implemented strict regulations to "curb the spread of the virus" and "flatten the curve".1 In response to the arrival of the virus in South Africa, the government implemented lockdown measures via a five-stage risk-adjusted strategy.2 While some were baking banana bread, navigating the world of online videoconferencing, or taking that much-needed break, too many others had to fight for survival. The poorest in our society were expected to endure lockdown in cramped living spaces with limited income, resources and employment opportunities. The following statement from a typical poor South African man is poignant: "How can I buy a sanitiser when I can't even feed myself?"3
Under level five of the risk-adjusted strategy, all non-essential economic activity was prohibited. People were required to stay at home, schools were shut down, non-essential travel was banned, and personal movement was limited.4 The restrictions were enforced by the South African Police Service and National Defence Force in, some would argue, an overly militarised manner. Regulations were implemented across race, class and other divides with little consideration of differences. Whilst some have called COVID-19 "the great equaliser", some felt the burden of the implemented restrictions more than others. This had an impact on various human rights, including the rights to health care, food, education, work, and respect for human dignity and freedom of movement. People already at the lower end of the income spectrum and facing the consequences of pre-existing structural inequality and discrimination were made even more vulnerable to violations of these rights. In an address to the World Health Organisation, South African President Cyril Ramaphosa recognised that "it is the poor who will suffer the most" due to the pandemic.5
| * | Annelie de Man. BCom LLB LLM LLM LLD. Free State Centre for Human Rights, | ||
|---|---|---|---|
| University of the Free State, South Africa. Email: anneliedm@gmail.com. ORCiD: | |||
| https://orcid.org/0000-0003-2026-5797. | |||
| 1 | Herfurth | 2020 | https://www.uab.edu/news/youcanuse/item/11268-what-exactly |
| does-it-mean-to-flatten-the-curve-uab-expert-defines-coronavirus-terminology-for | |||
| everyday-life. | |||
| 2 | GN R480 in GG 43258 of 29 April 2020. | ||
| 3 | Ngqambela | 2020 | https://mg.co.za/opinion/2020-11-10-recommendations-for-a |
| nation-in-crisis/. | |||
| 4 | GN R480 in GG 43258 of 29 April 2020. |
In a recent judgment of the South African Equality Court in Social Justice Coalition v Minister of Police 2019 4 SA 82 (WCC) (hereafter the Social Justice Coalition case) it was determined that poverty can be a basis for direct and indirect discrimination as outlined in section 9 of the Constitution of the Republic of South Africa, 1996 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereafter the Equality Act). The latter prohibits "any act or omission … which directly or indirectly
(a) imposes burdens, obligations or disadvantages on; or (b) withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds."6 In addition to the listed grounds, it further prohibits discrimination based on any other grounds where such discrimination "causes or perpetuates systemic disadvantage; undermines human dignity; or adversely affects the equal enjoyment of a person's rights and freedoms."7
The importance of following a constitutional approach in curbing the pandemic was highlighted by Fabricius J as follows:
The virus may well be contained (but not defeated until a vaccine is found) but what is the point if the result of harsh enforcement measures is a famine, an economic wasteland and the total loss of freedom, the right to dignity and the security of the person and, overall, the maintenance of the rule of law? The answer in my view is: there is no point.8
In line with this statement, this article will explore to what extent the regulations implemented under the South African COVID-19 Risk-Adjusted Strategy were indirectly discriminatory, based on the grounds of poverty, and thus unconstitutional. This will be done by analysing the lockdown regulations in the light of the test for unfair discrimination set out in the well-known case of Harksen v Lane 1998 1 SA 300 (CC) (hereafter the Harksen case), which laid the foundation for inquiries into alleged discrimination in South Africa.
The paper will begin by providing an overview of the measures and limitations implemented in South Africa to contain the spread of the virus.
| 5 | Ngatane | 2020 | https://ewn.co.za/2020/05/18/the-poor-will-suffer-most-from |
|---|---|---|---|
| coronavirus-pandemic-says-ramaphosa. | |||
| 6 | Section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 | ||
| of 2000 (hereafter the Equality Act). | |||
| 7 | Section 1 of the Equality Act. | ||
| 8 | Khosa v Minister of Defence and Military Defence and Military Veterans 2020 5 SA | ||
| 490 (GP) (hereafter the Khosa case) para 6. |
While not all the regulations will be discussed, the focus will be on the strictest regulations that impacted economic activity. Next, an analysis will be conducted on these regulations' impact, specifically on impoverished individuals. To demonstrate that poverty is also a form of unfair discrimination, the Social Justice Coalition case will be examined. For the purpose of this paper, those considered poor are those with low levels of income, earning potential, education, and skills levels. The paper will then scrutinise the lockdown regulations using the Harksen analysis to assess whether unfair discrimination occurred. This will involve exploring the concept of equality, determining whether discrimination occurred, examining whether the alleged discrimination was unjust (under section 9 of the Constitution), and ultimately evaluating if the discriminatory conduct can be justified by section 36 of the Constitution.
On 15 March 2020, in response to the rapid increase in COVID-19 infections in South Africa, the Minister of Cooperative Governance and Traditional Affairs declared a national state of disaster in terms of section 27 of the Disaster Management Act 57 of 2002. This entailed that on 26 March 2020 South Africa was placed under lockdown with severe restrictions on economic activity and the movement of persons.9 As part of a more extensive set of regulations, these restrictions were promulgated in terms of section 27 of the Disaster Management Act (hereinafter referred to as the lockdown regulations). All persons were restricted to their places of residence unless they were performing essential services,10 needed to obtain essential goods and services or a social grant, or needed to receive emergency, life-threatening or chronic medical care.11 Only businesses supplying, manufacturing, providing and selling essential goods and services were allowed to operate.12 All other businesses and entities had to remain closed,13 including schools and other educational institutions.14 All forms of public transit were suspended except for the movement of essential
9 GN R398 in GG 43148 of 25 March 2020. 10 Annexure B in GN R398 in GG 43148 of 25 March 2020. 11 Reg 11B(1)(a) in GN R398 in GG 43148 of 25 March 2020. 12 Reg 11B(1)(b) and (c) in GN R398 in GG 43148 of 25 March 2020. 13 Reg 11B(1)(e) in GN R398 in GG 43148 of 25 March 2020. 14 Reg 11B(1)(a) in GN R398 in GG 43148 of 25 March 2020.
goods, the movement of people to perform key services or obtain crucial supplies, seek medical care, attend a funeral or receive a grant.15
On 29 April 2020, in line with section 27(2) of the Disaster Management Act, the Minister introduced the five-tier Risk-Adjusted Strategy that outlined the restrictions at each tier (alert level) and the phased reopening of the economy.16 Alert level four took effect on 1 May 2020. The movement of persons and goods was still significantly restricted and schools remained closed. Moreover, only a minimal number of products and services were permitted to be provided in addition to those already being provided under alert level five, for example, winter clothing, bedding, stationery and educational books.17 The country moved to level three on 1 June 2020, and this was eventually followed by levels two and one. Schools were reopened in phases starting with the return of Grade 12 and 7 learners on 1 June 2020. All learners were able to return to school by 3 August 2020. The stringent restrictions on economic activity put in place under alert levels five and four will be the focus of the rest of this article. This includes the closure of schools under the same alert levels as this has had a particular impact on future poverty levels.
In April 2020 President Ramaphosa announced the implementation of a R500 billion stimulus package to assist those facing a loss of income.18 Among others, and in addition to existing social grants, a special COVID-19 Social Relief of Distress grant of R350 per month was made available to "individuals who are currently unemployed and do not receive any other form of social grant or [Unemployment Insurance Fund] payment."19 It was projected that it would eventually reach up to 10 million people.20 Other forms of social assistance included an additional R500 per month to child support grant beneficiaries and an additional R250 per month paid to all other grant beneficiaries.21 Furthermore, relief was provided to small businesses through debt relief, financial aid, tax payment deferrals, etc., including a COVID-19 Loan Guarantee Scheme.22 The Temporary
15 Reg 11C(1) in GN R398 in GG 43148 of 25 March 2020. 16 GN R480 in GG 43258 of 29 April 2020. 17 See Chapter 3 and Table 1 in GN R480 in GG 43258 of 29 April 2020. 18 Tromp and Kings 2020 https://mg.co.za/article/2020-04-21-ramaphosa-announces
r500-billion-COVID-19-package-for-south-africa/. 19 South African Government date unknown https://www.gov.za/COVID-19/individuals
and-households/social-grants-coronavirus-COVID-19. 20 Bhorat and Khler 2020 https://www.brookings.edu/articles/lockdown-economics-in
south-africa-social-assistance-and-the-ramaphosa-stimulus-package/. 21 UNDP COVID-19 in South Africa 30. 22 The Presidency 2020 http://www.thepresidency.gov.za/from-the-desk-of-the
president/desk-president%2C-monday%2C-9-november-2020.
Employer Relief Scheme also provided income protection to workers and short-term relief to business owners.23
In his weekly newsletter dated 9 November 2020 President Ramaphosa proudly stated that:
[w]e massively expanded social protection on a scale that has never been attempted before in this country. We are one of the few countries in the world where the right of access to social security is enshrined in the Constitution, and we can be proud that during this grave crisis we gave practical expression to this right in many ways.24
Even though this statement might be true, the reality for many South Africans was far less pleasant. South Africa had one of the harshest lockdowns globally, and the restrictions on economic activities and the movement of persons forced many to face financial difficulties. Job cuts, the inability to access the workplace and technological resources, and minimal or no working hours for hourly wage-earning employees caused economic hardship for many. It was reported that lockdown measures caused earnings to decrease by 30 per cent.25 According to Statistics South Africa (Stats SA), October 2020 saw the national unemployment rate increase to
The pandemic and the consequent regulations had a disastrous impact on many households, especially in terms of the overall poverty levels of the country. However, this paper focusses on the possible disproportionate impact of the lockdown regulations on households already classified as poor before the pandemic, or those who fell into poverty because of the pandemic or the lockdown regulations.
Former Public Protector Professor Thuli Madonsela argues that the pandemic and the consequent lockdown regulations have "brought into focus the harsh realities of the inequality that still exists in South Africa, despite it having one of the most ground-breaking constitutions in the
23 The Presidency 2020 http://www.thepresidency.gov.za/from-the-desk-of-thepresident/desk-president%2C-monday%2C-9-november-2020. 24 The Presidency 2020 http://www.thepresidency.gov.za/from-the-desk-of-thepresident/desk-president%2C-monday%2C-9-november-2020. 25 Payi 2020 https://www.iol.co.za/weekend-argus/news/calls-for-economic-reformspost-COVID-94e3a68e-f8b3-48b0-a982-c6ac3f8523c9.
26 Stats SA 2020 http://www.statssa.gov.za/publications/P0211/P0211 1stQuarter2020.pdf; Nathan 2020 https://www.biznews.com/globalcitizen/2020/11/12/job-losses-COVID-19; Winning 2020 https://www.reuters.com/ article/safrica-economy-unemployment-idUKL8N2HY3RG.
world."27 The United Nations Development Programme (UNDP) reported that poorer households that rely on wage earnings or perform unskilled labour were more negatively affected by the pandemic and the lockdown restrictions than wealthier households.28 For example, more than 250 000 domestic workers lost their jobs during lockdown levels five and four, with many still unemployed.29 Households that were most affected are those where the income-earners have no more than a Grade 11 education, as they are generally employed as unskilled or semi-skilled workers in sectors deemed non-essential.30 Many of these households fall within the International Labour Organisation's (ILO's) classification of the "working poor",31 as well as the definition of "the poor" on which this paper relies (see section 3 below). According to the ILO's annual Global Wage Report, low-income workers recorded the biggest losses in wages at 17.3 per cent of their standard earnings.32 It was reported that the poorest 10 per cent of households lost nearly 45 per cent of their income during the national lockdown.33 In addition, food prices significantly increased during the strictest lockdown levels as travel costs spiked due to the restrictions on the movement of goods.34 This further impacted the ability of poorer households to meet their basic needs. Even though many households faced job losses, the majority of people in the middle-and upper-class economic brackets were able to work from home and earn an income or were able to make use of savings to sustain them throughout the strictest lockdown periods. This was not the case for those that fell into the lowest income brackets of the country.
Those characterised in this paper as the poor also include, to a large extent, workers in the informal sector. Some three million people in South Africa work in the informal sector, which amounts to 20 per cent of total
27 Payi 2020 https://www.iol.co.za/weekend-argus/news/calls-for-economic-reformspost-COVID-94e3a68e-f8b3-48b0-a982-c6ac3f8523c9. 28 UNDP COVID-19 in South Africa 19. 29 Mutandiro 2020 https://www.dailymaverick.co.za/article/2020-10-23-domestic
workers-who-lost-their-jobs-during-lockdown-forced-to-beg-on-the-streets-withtheir-babies; Harradine 2020 https://www.conservativewoman.co.uk/lockdowns-willkill-millions-more-than-COVID-ever-could/; Naidoo 2022 https://www.sabcnews. com/sabcnews/domestic-workers-among-hardest-hit-by-covid-19-pandemic/.
30 UNDP COVID-19 in South Africa 20.
31 "The working poor are employed people who live in households that fall below an accepted poverty line"; See ILO date unknown https://ilostat.ilo.org/topics/workingpoverty/.
32 ILO ILO Global Wage Report 2020-21 15. 33 Sambath 2023 https://borgenproject.org/impact-of-covid-19-on-poverty-in-southafrica/. 34 Sambath 2023 https://borgenproject.org/impact-of-covid-19-on-poverty-in-southafrica/.
employment in the country.35 As determined by the UNDP, workers in this sector faced the largest average of job losses due to the restrictions placed on economic activity and were not directly targeted for assistance under the stimulus package.36 According to the Gauteng Health Member of the Executive Councils' spokesperson, informal settlers were particularly vulnerable to the virus due to high population density of the areas where they live and the near-impossibility of practising social distancing in cramped living spaces.37 Income-earners in this category who fell ill faced further income deficits. Furthermore, mandatory lockdowns forced many multigenerational households living in cramped spaces to be vulnerable to diseases such as tuberculosis, further impacting their income-earning potential.38 As a result, they were not able to meet their basic needs in the same manner as wealthier households.
The UNDP's socio-economic impact analysis also suggests that most households lost nearly 40 per cent of their income, and the special COVID19 grants and national stimulus package were not enough to cover these losses.39 This is compounded by the fact that money allocated for social assistance was illegally diverted due to corruption and financial mismanagement. Furthermore, many informal workers were curtailed from receiving social assistance due to prerequisites like submitting bank statements and tax clearance.40
Moreover, with the use of technology reaching an all-time high as many with access to the technology resorted to working from home and taking online classes because of mandatory school closures, those without access to the necessary technology due to their income levels fell further behind. Even though many educational institutions offered internet data to students, only
34.7 per cent of households had access to a laptop or computer and only
35 However, it is argued that due to the informality (and sometimes illegality) of the sector the exact number of income-earners in this sector is difficult to determine; See Rogan and Skinner 2019 https://theconversation.com/south-africas-informal-sectorcreates-jobs-but-shouldnt-be-romanticised122745#:~:text=The%20latest%20QLFS%20found%20about,sector%20activities% 20are%20not%20visible.
36 UNDP COVID-19 in South Africa 11.
37 Maphanga 2020 https://www.news24.com/news24/southafrica/news/two-subdistricts-in-johannesburg-have-recorded-over-10-000-COVID-19-cases-each20200721.
38 Harradine 2020 https://www.conservativewoman.co.uk/lockdowns-will-kill-millions
more-than-COVID-ever-could/. 39 UNDP COVID-19 in South Africa 19. 40 Surico 2020 https://news.trust.org/item/20201214132919-93fg5.
23.9 per cent could access the internet at home.41 This was a particularly precarious situation for those children who already had limited access to quality education.42 The loss of learning time could have potentially impaired cognitive development, which impairment would be carried into adulthood unless educational programmes are redesigned to address this.43 This is particularly harmful to poor children as they face further obstacles to escape the cycle of poverty.
From the above information, it is clear that the lockdown regulations that restricted economic activity, including the closure of schools, had a disproportionately harsh impact on those with the least income-earning potential, namely the poor. This conclusion accords with the finding of the Constitutional Court in Democratic Alliance v President of South Africa, 44 that the pandemic "has brought sharply into focus the fissures in our society caused by race, gender and other forms of egregious discrimination." This was confirmed by Pierre de Vos,45 who argued that "the effects of the COVID-19 disaster are not evenly spread."
Even though there is no standard definition of poverty, several indicative factors have been identified to determine whether a specific group, community or part of society can be characterised as poor. As argued by Chetwyn,46 poverty relates to the standard of living of a portion of society and is usually determined in terms of economic capacity. According to the World Bank poverty is indicated by factors such as low income, low-level education, poor health, vulnerability and powerlessness.47 In the context of this paper those considered poor are those with low levels of income and limited economic capacity, earning potential and education, and low skills level.
41 Sambath 2023 https://borgenproject.org/impact-of-covid-19-on-poverty-in-south
africa/. 42 UNDP COVID-19 in South Africa 22; Maseko and Rosa 2020
https://www.dailymaverick.co.za/article/2020-12-03-the-new-lost-generation
COVID-19-has-poured-rocket-fuel-on-our-education-crisis/. 43 Hanushek and Woessmann The Economic Impacts of Learning Losses 12-13. 44 Democratic Alliance v President of South Africa (21424/2020) [2020] ZAGPPHC 237
(19 June 2020) para 49. 45 De Vos 2020 https://www.dailymaverick.co.za/opinionista/2020-06-23-court-ruling
on-COVID-19-relief-criteria-affirms-that-the-pandemic-is-not-the-great-equaliser/. 46 Chetwynd, Chetwynd and Spector Corruption and Poverty 5-6. 47 World Bank World Development Report for 2000/01 15.
Section 9 of the Constitution clearly states that unfair discrimination based on several listed grounds is prohibited. However, in Prinsloo v Van der Linde (hereafter the Prinsloo case) it was found that these "specified grounds are not exhaustive".48 The Court held that:
[w]here discrimination results in treating persons differently in a way which impairs their fundamental dignity as human beings, it will clearly be a breach of section 8(2). Other forms of differentiation, which in some other ways affect persons adversely in a comparably serious manner, may well constitute a breach of section 8(2) as well.49
Therefore, any grounds of differentiation other than those listed in section 9(3) can also constitute grounds for discrimination if they have "an adverse effect on the dignity of the individual, or some comparable effect".50 Furthermore, in addition to listing prohibited grounds the Equality Act goes further and prohibits unfair discrimination on any other grounds with certain discriminatory consequences (which will be discussed in detail below). Establishing that poverty meets the criteria of any other grounds will lay the foundation for the argument that the lockdown regulations restricting economic activity are unfairly discriminatory based on the unlisted ground of poverty.
In the case of Social Justice Coalition the Equality Court of South Africa considered a case of alleged unfair, indirect discrimination on the grounds of race and poverty against the inhabitants of a predominantly black settlement. The Court specifically considered the provisions of the Equality Act, which "has its origin in section 9 of the Constitution".51 Section 6 of the Act provides the general prohibition that "[n]either the state nor any person may unfairly discriminate against any person". The Equality Act defines discrimination as:
[a]ny act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly
(a) imposes burdens, obligations or disadvantages on; or
48 Prinsloo v Van der Linde 1997 3 SA 1012 (CC) (hereafter the Prinsloo case) paras 28, 31-32. Even though this finding was based on s 8 of the Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution), it is generally accepted that the same argument can be applied to s 9(3) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).
49 Prinsloo case para 33.
50 Khosa case para 70; Also see Harksen case paras 46-49.
51 Social Justice Coalition case para 30.
(b) withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds.52
The prohibited grounds include:
(iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).53
For the first time, the Equality Court had to consider whether poverty "qualifies as an unlisted ground in terms of paragraph (b) of the definition of prohibited ground."54 It was held that for poverty to qualify as an unlisted ground it must be determined whether it falls within the Act's definition of "any other ground". Considering the definition of "prohibited grounds", poverty will qualify as an unlisted ground if discrimination on that basis results in:
[u]ndesirable consequences which (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyments of a person's rights and freedoms in a serious manner that is comparable to discrimination on any of the prohibited grounds.55
To make the argument that poverty qualifies as an unlisted ground, the applicants in the case relied on section 34(1) of the Equality Act, which states that:
[i]n view of the overwhelming evidence of the importance, impact on society and link to systemic disadvantage and discrimination on the grounds of HIV/AIDS status, socio-economic status, nationality, family responsibility and family status
(a) special consideration must be given to the inclusion of these grounds in paragraph (a) of the definition of "prohibited grounds" by the Minister.
The Equality Act defines socio-economic status as:
52 Section 1 of the Equality Act. 53 Section 1 of the Equality Act. My emphasis. 54 Section 1 of the Equality Act. 55 Social Justice Coalition case para 57.
[i]ncluding a socio or economic condition or perceived condition of a person who is disadvantaged by poverty, low employment status or lack of or low-level education qualification.56
The applicants further argued that poverty is a systemic problem that violates human dignity and leaves the poor vulnerable and marginalised.57 The Court agreed with the applicants' arguments and further held that discrimination based on poverty hampers the protection and fulfilment of the economic and social rights of all.58 The finding of the Court is also in line with the following views of the United Nations Committee on Economic, Social and Cultural Rights (CESCR):
The nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of ‘other status’ is thus needed in order to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds. ... These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization.59
The Committee further recognised that peoples' economic or social status can make them vulnerable to discrimination, resulting in unequal access to the enjoyment of economic, social, and cultural rights.60
One could argue in this light that it is possible to unfairly discriminate based on poverty because of the continued marginalisation and vulnerability experienced by people living in poverty, as well as the effect that systemic disadvantages have on their human dignity and equal enjoyment of rights.
The preceding information paints a bleak picture, especially for those already part of one of the most vulnerable sectors in society before the pandemic, i.e. the poor. In line with the finding of the Equality Court that poverty can constitute a ground for discrimination, it is possible to ask if the government's lockdown regulations were discriminatory against those living in poverty.
| 56 | Section 1 of the Equality Act. |
|---|---|
| 57 | Social Justice Coalition case paras 63-64. |
| 58 | Social Justice Coalition case para 65. Note that the Constitutional Court of South |
| Africa dismissed an appeal against the judgment of the Equality Court which was | |
| heard on 3 February 2022. | |
| 59 | CESCR General Comment No 20: Non-Discrimination in Economic, Social and |
| Cultural Rights UN Doc E/C.12/GC/20 (2009) para 27. | |
| 60 | CESCR General Comment No 20: Non-Discrimination in Economic, Social and |
| Cultural Rights UN Doc E/C.12/GC/20 (2009) para 35. |
It is important to note that, according to the rule of subsidiarity, "adjudication of substantive issues should (subject to certain provisos …) be determined with reference to more particular, indirect constitutional norms applicable, rather than more general, direct constitutional norms applicable."61 Therefore, claims of unfair discrimination must be based on the Equality Act rather than invoking the constitutional right to equality under section 9. However, an important proviso of the subsidiarity rule applies. The specific constitutional right should be relied upon when a regulation or legislation is challenged on the basis of its alleged inconsistency with the Constitution.62 Therefore, an argument that the lockdown regulations are unfairly discriminatory should be based on section 9 of the Constitution, not on the Equality Act, as the constitutionality of regulations is in question.
Section 9(2) of the Constitution states that "[e]quality includes the full and equal enjoyment of all rights and freedoms." The Equality Act defines "equality" as "the full and equal enjoyment of rights and freedoms as contemplated in the Constitution and includes de jure and de facto equality and equality in terms of outcome." The formal definition of equality requires that all people are treated equally without differentiation on any arbitrary grounds such as race, sex, religion, etc.63
On the other hand, substantive equality requires "that laws or policies do not reinforce the subordination of groups already suffering social, political or economic disadvantage and requires that laws treat individuals as substantive equals, recognising and accommodating peoples' differences."64 The Constitutional Court of South Africa has demonstrated a preference for the notion of substantive equality over that of formal equality.65 The rest of the paper will also rely on the substantive interpretation of equality.
| 61 | Murcott and Van der Westhuizen 2015 CCR 46-47; Also see Albertyn 2018 SALJ |
|---|---|
| 413. | |
| 62 | Murcott and Van der Westhuizen 2015 CCR 47-48; Also see Solidariteit Helpende |
| Hand NPC v Minister of Basic Education (58189/2015) [2017] ZAGPPHC 1220 (8 | |
| November 2017) (hereafter the Solidariteit case) para 75. | |
| 63 | Smith 2014 AHRLJ 611. |
| 64 | Smith 2014 AHRLJ 613. |
| 65 | See Smith 2014 AHRLJ 614-629; Albertyn and Goldblatt 1998 SAJHR 462. |
In Harksen, Goldstone J outlined a comprehensive test to determine whether unfair discrimination had occurred. As the first step, it must be determined whether the provision in question differentiates between people or categories of people. If this is the case, whether the differentiation bears a rational connection to a legitimate government purpose should be considered. With reference to the interim Constitution66 in place at the time when the case was heard, Goldstone J held that section 8(1) would be violated if no rational connection could be made. On the other hand, even if a rational connection exists, the provision could still amount to discrimination. This leads to the second question in the inquiry: "Does the differentiation amount to unfair discrimination?"67 Answering this question depends on a two-stage analysis: First, "does the differentiation amount to 'discrimination'"?68 If it is alleged that the differentiation is based on specified grounds, then discrimination needs to be established. In the case of unspecified grounds, "then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner."69
If discrimination is determined, the next step in the two-stage analysis is determining whether the discrimination amounts to unfair discrimination. If discrimination was based on specified grounds, then unfairness can be presumed. If, however, discrimination was based on unspecified grounds, then the onus rests on the complainant to prove unfairness. The focal point of the test for unfairness is the "impact of the discrimination on the complainant and others in his or her situation." If it is found that the discrimination was not unfair, then section 8(2) will not have been violated.70 However, if it has been found that the discrimination was unfair, then as the final step, it will have to be determined whether it can be justified under the limitations clause of the Constitution.71 Even though the test was formulated more than 20 decades ago, most judges still rely on it, as seen from the Social Justice Coalition case that was decided in 2018. As stated by Raan Krer,72 "[t]he test has certainly proven to be practical, at least to presiding officers, since it has been endorsed and applied over and over again since it was formulated."
| 66 | Constitution of the Republic of South Africa Act 200 of 1993. |
|---|---|
| 67 | Harksen case para 53(b). |
| 68 | Harksen case para 53(b)(i). |
| 69 | Harksen case para 53(b)(ii). |
| 70 | Harksen case para 53(b)(ii). |
| 71 | Harksen case para 53(c). |
The first step of the Harksen test is based on section 9(1) of the Constitution (section 8(1) of the interim Constitution) and is seen as the "gatekeeper clause".73 The purpose of the rationality test was explained in Prinsloo:
It is convenient, for descriptive purposes, to refer to the differentiation presently under discussion as ‘mere differentiation’. In regard to mere differentiation the constitutional State is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest ‘naked preferences’ that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional State. The purpose of this aspect of equality is, therefore, to ensure that the State is bound to function in a rational manner. This has been said to promote the need for governmental action to relate to a defensible vision of the public good, as well as to enhance the coherence and integrity of legislation.74
The Constitutional Court went further and explained that at the root of the rationality test:
[t]he question is not whether the government may have achieved its purposes more effectively in a different manner, or whether its regulation or conduct could have been more closely connected to its purposes. The test is simply whether there is a reason for the differentiation that is rationally connected to a legitimate government purpose.75
The novel COVID-19 virus posed a significant risk to the health and life of everyone. With more than six million deaths related to the virus globally,76 the priority at the time of the implementation of the regulation was to save lives. The rights to life and access to health care are fundamental rights contained in the Constitution. The Constitutional Court of South Africa views the right to life as the most fundamental human right from which all other rights emanate.77 The respondent in the case of De Beer v The Minister of Cooperative Governance and Traditional Affairs (hereafter the De Beer case)78 submitted that the protection and fulfilment of these rights were the overarching objectives of the regulations. It was contended that this could be achieved only through curbing the spread of the virus and ensuring that hospitals had enough resources to care for those in need, even if this was achieved at the cost of economic losses and restrictions on the freedom of movement.79 Richard Calland agrees and argues that:
| 72 | Krer 2011 SALJ 479. | ||
|---|---|---|---|
| 73 | Albertyn and Goldblatt 1998 SAJHR 462. | ||
| 74 | Prinsloo case paras 25-26. | ||
| 75 | East Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane Transitional Local Council | ||
| 1998 2 SA 61 (CC) para 24; See also Albertyn and Goldblatt 1998 SAJHR 464. | |||
| 76 | Worldometer | 2023 | https://www.worldometers.info/coronavirus/?utm_campaign= |
| homeAdvegas1?%22%20%5Cl%20%22countries. | |||
| 77 | S v Makwanyane 1995 3 SA 391 (CC) paras 80-86. | ||
| 78 | De Beer v The Minister of Cooperative Governance and Traditional Affairs 2020 11 | ||
| BCLR 1349 (GP) (hereafter the De Beer case) para 4.8. It is worth noting that the | |||
| judge did not find fault with the ultimate objective of the lockdown regulations (i.e., | |||
| to limit the spread of the virus) and even found it to be "commendable" (para 7.17). |
[t]he risk-adjusted strategy that creates the framework of different COVID-19 alert levels, under the Disaster Management Act 2002, seeks to strike a balance at every stage of the unfolding crisis between competing and overlapping priorities. This includes the public health priority of building capacity in the health system to absorb an inevitable rise in infections, and the duty of the state to protect lives and livelihoods.80
For the argument at hand, and to proceed to the next stage of the Harksen test, we can assume that the lockdown regulations served a legitimate government purpose and that there was no violation of section 9(1) of the Constitution. A claim of unfair discrimination of this nature should therefore be brought in terms of section 9(3), and a comprehensive examination of fairness under this section would be more appropriate.81 However, according to the Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister of Justice "[t]his does not mean … that in all cases the rational connection inquiry of stage (a) must inevitably precede stage (b). The stage (a) rational connection inquiry would be clearly unnecessary in a case in which a court holds that the discrimination is unfair and unjustifiable."82
The second step in the inquiry requires a "two-stage analysis". First, it has to be determined whether the differentiation amounts to discrimination, as outlined in section 9(3). Two forms of discrimination exist. The first is differentiation on one or more of the grounds listed in section 9(3). The second form is differentiation based on grounds not specified in section 9(3) but analogous to those listed.83 In Prinsloo, it was held that:
[g]iven the history of this country we are of the view that ‘discrimination’ has acquired a particular pejorative meaning relating to the unequal treatment of
people based on attributes and characteristics attaching to them… [U]nfair
| 79 | De Beer case paras 6.9-6.11. |
|---|---|
| 80 | Calland 2020 https://theconversation.com/court-throws-south-africas-lockdown-exit |
| strategy-into-disarray-but-it-got-it-wrong-139991. | |
| 81 | See Albertyn 2018 SALJ 406. |
| 82 | National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 |
| (CC) para 18. | |
| 83 | Harksen case para 46; Prinsloo case para 28. |
discrimination, when used in this second form in section 8(2), in the context of section 8 as a whole, principally means treating persons differently in a way which impairs their fundamental dignity as human beings, who are inherently
equal in dignity… Where discrimination results in treating persons differently
in a way that impairs their fundamental dignity as human beings, it will clearly breach section 8(2). Other forms of differentiation, which in some other way affect persons adversely in a comparably serious manner, may well constitute a breach of section 8(2) as well.84
To determine whether discrimination occurred, it first has to be established against whom the alleged discrimination occurred, and thus the grounds for discrimination. Based on the information set out in section 1.2 above, it is argued that the lockdown regulations disproportionately impacted those living in poverty at the start of the pandemic (and eventually those pushed into poverty because of the pandemic and the lockdown restrictions).
The question then must be answered whether the differential treatment, in this case the differentiated impact as highlighted in section 1.2 above, was of such a nature that it impaired the fundamental human dignity of those living in poverty. The United Nations Office of the High Commissioner for Human Rights has explicitly stated that "poverty is not only deprivation of economic or material resources but a violation of human dignity too."85 Furthermore, according to Moseneke DCJ: "The well-earned and lofty thrust of our Constitution is at strenuous odds with demeaning deprivation. Abject poverty wrenches dignity out of any life."86 Pushing people further into the cycle of poverty through restrictions on their income-earning potential (as has been the case with the lockdown measures) will violate their right to have their human dignity respected and upheld as contained in sections 7 and 10 of the Constitution.87 This argument is supported by the fact that the Supreme Court of Appeal of South Africa has found the "freedom to engage in productive work … an important component of human dignity."88 Therefore, based on the arguments presented above, a case of discrimination based on the unlisted grounds of poverty can be made.
84 Prinsloo case paras 31, 33. 85 OHCHR date unknown https://www.ohchr.org/en/issues/poverty/dimensionof poverty/pages/index.aspx. 86 Minister of Health v New Clicks South Africa (Pty) Ltd 2006 2 SA 311 (CC) 705; See also Van der Linde 2020 PELJ 18.
87 Section 7(1) of the Constitution states: "This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom." and s10 states: "Everyone has inherent dignity and the right to have their dignity respected and protected."
88 Minister of Home Affairs v Watchenuka 2004 1 All SA 21 (SCA) para 27.
In Social Justice Coalition the Court further recognised that discrimination might be direct or indirect. It defined indirect discrimination as "differentiation [that] appears to be neutral but has the effect of discriminating on prohibited grounds, whether listed or unlisted".89 Reference was also made to the definition of indirect discrimination provided by the United Nations CESCR as "refer[ing] to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination."90 In determining whether the alleged discrimination in the present case was of a direct or indirect nature, it is clear that the lockdown regulations appeared to be neutral at face value as they were generally applied to all within South Africa's jurisdiction. However, the regulations had a disproportionately harmful impact on a specific group of people based on an inherent characteristic, in this case, on the poor. As such, a case of indirect discrimination based on the unlisted ground of poverty can be argued.
In line with the concept of substantive equality, differential treatment will not always per se constitute a violation of the right to equality. In President of the Republic of South Africa v Hugo91 (hereafter the Hugo case) it was held that to ensure an equal society, different treatment of different groups is sometimes necessary, especially where the aim is to alleviate disadvantage. However, any such differential treatment must be fair. Speaking to the concept of unfairness, the Court in Hugo held that:
[t]he prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.92
89 Social Justice Coalition case para 36. See also Pretoria City Council v Walker 1998 2 SA 363 (CC), where unfair indirect discrimination on the ground of race was found.
90 CESCR General Comment No 20: Non-Discrimination in Economic, Social and Cultural Rights UN Doc E/C.12/GC/20 (2009) para 10(b). "Covenant rights" refer to rights contained in the International Covenant on Economic, Social and Cultural Rights (1966).
91 President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC) (hereafter the Hugo case) para 41. 92 Hugo case para 41.
It thus falls to be determined, in line with the second leg of the Harksen two-stage analysis, whether the indirect discrimination based on the grounds of poverty, as determined above, amounts to unfair discrimination. The Constitutional Court has found that unfairness can be presumed in the event of discrimination on specified grounds. However, in the case of discrimination on unspecified grounds, as is in the present case, no such presumption can be made, and unfairness must be established.93 The focus should primarily be on the impact of the discrimination on the complainant and others in the same position.94 This was confirmed in the case of Pretoria City Council v Walker.95 In section 1.2 above it was highlighted that the economic restrictions and the closure of schools had a disproportionately greater impact on the ability of the poor to meet their basic needs than on those in the middle and upper classes of society. This disproportionate impact caused by the loss of income and learning time was not only felt during the strictest lockdown periods, but continues to hamper the ability of the poor to escape the cycle of poverty.
In Harksen Goldstone J listed several factors whose cumulative effects must be considered in determining the fairness of the alleged discrimination as it relates to its impact on a complainant. These are a) "the position of the complainants in society and whether they have suffered in the past from patterns of disadvantage"; b) whether the discrimination in question is on a specified ground or not; c) the nature of the provision that constitutes the alleged discrimination; d) the purpose of the provision; e) the extent of the alleged discrimination on the rights of the complainants; f) whether "it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature"; and g) any other relevant factors.96
In the present instances, the alleged unfair discrimination is based on the grounds of poverty, with the poor constituting the disadvantaged group. Therefore, the position of the disadvantaged group, in this case the poor, needs to be considered. Poverty can have long-lasting consequences for households and creates a negative spiral that can span generations.
| 93 | Harksen case para 47; Prinsloo case para 28. |
|---|---|
| 94 | Harksen case para 54(b); Social Justice Coalition case para 38; Also see Albertyn |
| 2007 SAJHR 259. | |
| 95 | Pretoria City Council v Walker 1998 2 SA 363 (CC) para 37. |
| 96 | Harksen case para 51. |
Notions like a "cycle of poverty"97 and "poverty trap"98 are well-known and accepted in practice and scholarship. Even before the 2019 coronavirus pandemic South Africa had been plagued by high poverty levels and growing inequality.99 In a briefing to the World Bank, it was estimated that
55.5 per cent of the population lives in poverty, and South Africa is known as "one of the most unequal countries in the world".100 In Social Justice Coalition the Court agreed with the applicant's argument that poverty creates and contributes to systemic disadvantages, especially in South Africa, due to our history and its impact on our current economic system.101 Section 34(1) of the Equality Act also recognises the link between systemic disadvantages and socio-economic status.
Moreover, people living in poverty are considered vulnerable and need special protection. As already mentioned, one of the effects of the discriminatory lockdown regulations was pushing people in this group further into an often-inescapable cycle of poverty, thereby enhancing their vulnerability. In Hugo it was held that "[t]he more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair."102 Additionally, the notion of substantive equality requires that this group receives special protection. The disadvantages caused by the economic lockdown restrictions and the closure of schools (as shown in section 1.2 above) contributed to the downward spiral of poverty and made it even more difficult for those trapped in its clutches to escape. The precarious position of the poor in society and the fact that their vulnerability was enhanced due to the lockdown restrictions strengthen the argument that the discrimination faced was unfair.
In terms of the next stage of the determination of fairness, the Court in Hugo held that:
97 World Vision 2021 https://www.worldvision.ca/stories/child-sponsorship/what-is-the
cycle-of-poverty. 98 The Economic Times date unknown https://economictimes.indiatimes.com/
definition/poverty
trap#:~:text=Definition%3A%20Poverty%20trap%20is%20a,capital%20and%20cre
dit%20to%20people. 99 It was reported that 25.2 per cent of the population lived in extreme poverty in 2017;
Stats SA 2019 http://www.statssa.gov.za/MDG/SDGs_Country_Report_2019_
South_Africa.pdf 45. 100 World Bank 2020 https://databank.worldbank.org/data/download/poverty/
33EF03BB-9722-4AE2-ABC7-AA2972D68AFE/Global_POVEQ_ZAF.pdf; Stats SA
2020 http://www.statssa.gov.za/?p=12930. 101 Social Justice Coalition case paras 63-65; Also see Van der Linde 2020 PELJ 18. 102 Hugo case para 112; Also see Solidariteit case para 53.
[t]o determine whether that impact was unfair it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination.103
This is in line with Harksen, where the Judge held that:
[i]f its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question.104
Considering the high death toll related to COVID-19 globally and nationally, the importance of the objectives of the lockdown regulations as a whole, namely to save lives by limiting the spread of the virus and conserving limited medical resources, cannot be denied. At first glance, the regulations seemed to serve a legitimate societal interest. However, how this interest balances with the rights of the poor will in my view be one of the more difficult considerations in determining the fairness of the lockdown restrictions and will be expanded upon in section 3.5 below.
Lastly, the extent to which the infringement of the complainant's rights impairs their human dignity has to be considered.105 According to the Constitutional Court, "the more invasive the nature of the discrimination upon the interests of the individuals affected by the discrimination, the more likely it will be held to be unfair."106 This was one of the primary considerations of unfairness in Hugo.107 In Harksen Goldstone J held that:
The prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner.108
It is argued that discrimination that is likely to impair human dignity will likely be held to be unfair.109 As already argued in detail above, poverty significantly impacts on human dignity. Moreover, bearing in mind the considerable effect of the economic restrictions on the livelihoods of many poor households in South Africa, and considering the findings of the UNDP's
103 Hugo case para 43. 104 Harksen case para 51; Also see Krer 2011 SALJ 486. 105 Albertyn 2018 SALJ 411. 106 Solidariteit case para 53; Also see Kok 2017 SAJHE 33; De Waal 2002 SA Merc LJ
141-156. 107 Hugo case paras 41, 43. 108 Harksen case para 50. 109 Kok 2017 SAJHE 33.
socio-economic impact assessment outlined above, an argument can easily be made that the lockdown restrictions constituted a significant impairment of the well-being and human dignity of those living in poverty.
A comprehensive view of the arguments presented above lays a strong foundation for the argument that the lockdown restrictions were unfairly and indirectly discriminatory on the ground of poverty. This brings us to the next step in the inquiry: whether the perpetrator of the alleged discrimination can prove that the differential treatment (in this case, the differential impact) was indeed fair and a justifiable limitation of the right to equality.
In the event of a finding of unfair discrimination, according to Harksen, the final leg of the inquiry involves a determination as to whether the discriminatory provision is justifiable under the limitation clause of the Constitution.110 Section 36 of the Constitution enables a respondent to argue that the limitation of the right to equality (unfair discrimination) is justifiable. As contained in section 9 of the Constitution, the right to equality is not an absolute right and can be limited if the standards outlined in section 36 are met.111 Section 36(1) of the Constitution states:
The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including —
The first requirement of section 36 is that the limitation of a fundamental right must be in accordance with a "law of general application".112 This is indeed the case with the lockdown regulations, which were applied without differentiation to all in South Africa. In terms of the rest of the requirements of section 36, according to Anton Kok,113 many of the same factors
110 Harksen case para 52. 111 Smith 2014 AHRLJ 616; De Beer case para 6.1. 112 See Kok 2017 SAJHE 34. 113 Kok 2017 SAJHE 34; Also see Krger 2011 SALJ 504.
considered in determining whether discrimination was unfair will also be considered in determining the justifiability of the unfair discrimination. These have already been set out in detail above. However, it is worth recognising that the right to equality and the right to have one's inherent human dignity respected are fundamental human rights. Respect for and the protection of these rights are especially important in the light of the history of the country and current high levels of inequality. In addition, the purpose of the lockdown restrictions deserves further attention.
In this specific case, the global coronavirus pandemic and its significant effect on health and well-being will play a crucial role in determining the justifiability of the limitation of rights due to the lockdown regulations.114 As already mentioned, the purpose of the lockdown restrictions seems to have been laudable. Undoubtedly, the spread of the virus was significantly slower during the strictest lockdown levels. However, many nations, South Africa included, experienced continued waves of COVID-19 despite the lockdown. The argument by many "lockdown sceptics" that the lockdown regulations served only to postpone the inevitable seems to hold water. Many have argued that considering the low mortality rates and their severe impact on the economy the lockdown was not justified and that lockdowns only postpone the inevitable.115 Keeping in mind the toll that the pandemic took on the lives and health of millions across the globe, it would be difficult to argue that the restrictions did not serve a legitimate purpose. The question whether less restrictive means was available to achieve this purpose would be more complex to answer. This would require an in-depth comparative analysis of countries with populations and socio-economic compositions similar to South Africa’s. At this moment in time one should be wary of the benefits of hindsight based on the mass of knowledge acquired since the virus first crossed our borders. However, it would be safe to assume, for the purpose of this article, that the restrictions served an important societal purpose.
It is also worth considering the steps taken by the government to mitigate any disadvantages caused by the lockdown restrictions. As mentioned above, the government introduced a R500 billion stimulus package to minimise the impact of the economic restrictions on individuals and businesses. However, current projections indicate that the respective grants and loans were not sufficient to cover all financial losses (which was to be
114 Kok 2017 SAJHE 33.
115 See for instance Harradine 2020 https://www.conservativewoman.co.uk/lockdowns
will-kill-millions-more-than-COVID-ever-could/; Jones 2020 https://www.con
servativewoman.co.uk/flawed-science-of-the-lockdown-lobby.
expected, considering the impact of the pandemic as well as the economic restrictions put in place on the global and national economic levels). However, in this instance the question should be whether the stimulus package was enough to protect poor households and individuals from suffering a disproportionate loss in their overall well-being as against their wealthier counterparts. According to the UNDP's assessment, this does not
116
seem to have been the case.
Whether the restrictions served a legitimate purpose or important societal goal is only one side of the coin. All the factors outlined in section 36 above should be considered in their entirety and balanced against one another. According to the Constitutional Court: "[t]his will involve a weighing of the purpose and effect of the provision in question, and a determination as to the proportionality thereof in relation to the extent of its infringement of equality."117
As argued by Krger:
The limitation analysis proposed by the court involves a ‘proportionality exercise, in which the purpose and effects of the infringing provisions are weighed against the nature and extent of the infringement caused’.118
This analysis should be contextual and should consider the prevailing social, economic and political circumstances. The leader of the Democratic Alliance, John Steenhuisen, has adamantly stated that the effects of the lockdown on poverty, hunger, unemployment, domestic violence and general public health have "shown to be far more deadly than COVID in lower-income countries."119 The extent of the lockdown restrictions and their impact on the poor, as outlined above, must be balanced with the purpose and extent of the limitation of rights. This includes balancing various interests, for example, protecting society at large against individual financial hardships. Keeping in mind the fundamental importance of the rights to equality and respect for human dignity, as well as the disproportionate hardships experienced by the poor, which are still affecting many today, a strong case can be made that the impact of the economic restrictions under the lockdown regulations constitutes unfair discrimination.
116 UNDP COVID-19 in South Africa 19. 117 Harksen case para 52. 118 Krer 2011 SALJ 503. 119 Cothia 2020 https://www.thesouthafrican.com/news/steenhuisen-da-comments
ramaphosa-address-speech/.
Balancing the various interests in society is a delicate matter usually left up to the prerogative of policymakers, whom the courts see as adequately positioned to make decisions in this regard. Bearing in mind the unprecedented times we found ourselves in, Calland argues that:
[a]t a time of such extreme crisis, courts may be inclined to give the government a little more latitude – such as the decision of the German Supreme Court … in finding that its government has a wide scope for the assessment, evaluation and design of its COVID-19 response. As South Africa's Constitutional Court has found in other cases involving complex public policy and socio-economic rights, the more ‘polycentric’ the governmental decision-making or policy choice, the more careful the court should be not to stray into the executive's lane. Nothing could be as polycentric as COVID19.120
However, this does not permit a government to act in an authoritarian manner without regard to the constitutionally recognised rights of its people.121 This is not to say that the South African government acted with complete indifference of all fundamental human rights. However, the question is rather whether sufficient consideration was given to the impact of the regulations on various groups in society, in this case the poor, and how best these effects could have been minimised. The Constitution still forms the cornerstone of South African society, and its values become even more critical when we must find a way forward amidst uncertain times. In this instance South African courts play an invaluable role as they have a norm-setting power and must fulfil this role by ensuring that policy decisions are in line with constitutional values, especially the notion of substantive equality.
In the event of a finding that the lockdown regulations which formed the focus of this article constitute indirect, unfair discrimination on the grounds of poverty, an appropriate remedy should be considered. However, any such finding should be based on a consideration of each regulation individually and not on the entirety of the regulations. Section 172 of the Constitution grants courts broad discretion to order suitable remedies in the event of a violation of constitutionally protected rights. Even though the claim of unfair discrimination in the present case does not rely on the Equality Act, section 21 of the Act sets out the remedies for complainants
120 Calland 2020 https://theconversation.com/court-throws-south-africas-lockdown-exitstrategy-into-disarray-but-it-got-it-wrong-139991. 121 Calland 2020 https://theconversation.com/court-throws-south-africas-lockdown-exitstrategy-into-disarray-but-it-got-it-wrong-139991.
of unfair discrimination. It can provide guidance in deciding on appropriate relief. This could include an order to implement redress measures to rectify the disproportionate impact of restrictions on the most vulnerable.
In the present case, individual compensation for harm caused would be practically impossible and difficult to determine. Long-term policy interventions that prioritise the needs of the poor and address the harm caused by the discriminatory regulations would be the most suitable remedy. This is in line with De Vos'122 argument that there is "indeed a positive obligation on the state to include redress measures in its response to COVID-19. This would be so because COVID-19 and the lockdown have disproportionately impacted on those who are economically vulnerable." He argues further that "to minimise these effects would require not identical treatment but different treatment."123 The UNDP has called for future policy interventions to remedy the impact of the lockdown restrictions (for instance, the extension of existing social assistance or the creation of new forms of aid) to focus specifically on the most disadvantaged due to their pre-existing poverty and inequality.124
It should be kept in mind that a finding of unfair discrimination constitutes a violation of the state's obligation to respect, protect, promote and fulfil rights in terms of section 7(2) of the Constitution. In this instance this would include a violation of the obligation to progressively realise the socio-economic rights contained in the Bill of Rights, particularly the rights related to an adequate standard of living. The lockdown regulations could be perceived as a retrogression in the performance of the state's duties, and pressure must be placed on the state to rectify this violation. There have been renewed calls for implementing a basic income grant in South Africa to address the effects of the pandemic and the lockdown regulations and the country's high inequality and poverty levels.125 However, any proposed policy interventions must meet the criteria for a reasonable measure aimed
122 De Vos 2020 https://www.dailymaverick.co.za/opinionista/2020-06-04-lockdownregulation-judgment-is-flawed-but-so-is-governments-means-justifies-the-endsdefence/.
123 De Vos 2020 https://www.dailymaverick.co.za/opinionista/2020-06-23-court-rulingon-COVID-19-relief-criteria-affirms-that-the-pandemic-is-not-the-great-equaliser/.
124 UNDP COVID-19 in South Africa 22.
125 Nyoka 2021 https://mg.co.za/news/2021-05-25-renewed-calls-for-sa-to-have-abasic-income-grant/.
at fulfilling socio-economic rights.126 A human rights-based approach127 could be employed to inform policy interventions and future development programmes to address the inequalities caused by the pandemic and the lockdown restrictions.128
This article has made several generalised arguments regarding poverty and the discriminatory impact of the lockdown regulations on the poor. These arguments lay the foundation for an actionable case to be brought before the courts of South Africa on behalf of a specific group of people or community that falls within the classification of the poor. The courts will then be able to consider the impact of each relevant regulation via the section 9 test for unfair discrimination and its impact on the particular group. Moreover, the contextual and qualitative information presented in this study adds to the evidence base of the impact of the lockdown restrictions on the poor and highlights areas that should be considered in future policy interventions.
This country is facing a difficult future with severe economic problems impacting society. The government plays a central role in protecting the most vulnerable and poor. Various temporary relief measures have already ended, with the focus shifting to the Economic Reconstruction and Recovery Plan to stimulate economic growth and job creation. However, the message of the United Nations' 2030 Agenda for Sustainable Development still rings true, i.e. that no one should be left behind. This would require policymakers to adopt a differentiated approach to meet the needs of those suffering the most. South Africa is unique in its poverty and inequality levels, and we cannot blindly follow the same path as our more developed counterparts. This would require adopting a human rights-based approach to future policy interventions to overcome the hardships created by the pandemic and the associated restrictions and regulations.
126 See for instance the criteria laid down in Government of the Republic of South Africa
v Grootboom 2001 1 SA 46 (CC) and Minister of Health v Treatment Action
Campaign 2002 5 SA 721 (CC). 127 This approach is defined as "a conceptual framework for the process of human
development that is normatively based on international human rights standards and
operationally directed to promoting and protecting human rights" in OHCHR 2007
https://www.ohchr.org/sites/default/files/Documents/Publications/FAQen.pdf 128 Mubangizi 2021 JAL 251-257.
Albertyn 2007 SAJHR Albertyn C "Substantive Equality and Transformation in South Africa" 2007 SAJHR 253-276
Albertyn 2018 SALJ Albertyn C "Getting It Right in Equality Cases: The Evaluation of Positive Measures, Groups and Subsidiarity in Solidariteit v Minister of Basic Education" 2018 SALJ 403-418
Albertyn and Goldblatt 1998 SAJHR Albertyn C and Goldblatt B "The Decriminalization of Gay Sexual Offences:
The National Coalition for Gay and Lesbian Equality v The Minister of Justice and Others 1998 (6) BCLR 726 (W)" 1998 SAJHR 461-472
Chetwynd, Chetwynd and Spector Corruption and Poverty Chetwynd E, Chetwynd F and Spector B Corruption and Poverty: A Review of Recent Literature (Development Experience Clearinghouse Washington DC 2003)
De Waal 2002 SA Merc LJ De Waal J "Equality and the Constitutional Court" 2002 SA Merc LJ 141
Hanushek and Woessmann The Economic Impact of Learning Losses Hanushek EA and Woessmann L The Economic Impact of Learning Losses (Organisation for Economic Co-operation and Development Paris 2020)
ILO ILO Global Wage Report 2020-21 International Labour Organisation ILO Global Wage Report 2020-21: Wages and Minimum Wages in the Time of COVID-19 (ILO Geneve 2020)
Kok 2017 SAJHE Kok A "How to Balance Religious Freedom and Other Human Rights in the Higher Education Sphere" 2017 SAJHE 25-44
Krer 2011 SALJ Krer R "Equality and Unfair Discrimination: Refining the Harksen Test" 2011 SALJ 479-512 Mubangizi 2021 JAL Mubangizi J "Poor Lives Matter: COVID-19 and the Plight of Vulnerable Groups with Specific Reference to Poverty and Inequality in South Africa" 2021 JAL 237-258
Murcott and Van der Westhuizen 2015 CCR Murcott M and Van der Westhuizen W "The Ebb and Flow of the Principle of Subsidiarity: Critical Reflections on Motau and My Vote Counts" 2015 CCR 43-67
Smith 2014 AHRLJ Smith A "Equality Constitutional Adjudication in South Africa" 2014 AHRLJ 609-632
UNDP COVID-19 in South Africa United Nations Development Programme COVID-19 in South Africa: Socioeconomic Impact Assessment. United Nations in South Africa (UNDP New York 2020)
Van der Linde 2020 PELJ Van der Linde DC "Poverty as a Ground of Indirect Discrimination in the Allocation of Police Resources: A Discussion of Social Justice Coalition v Minister of Police 2019 4 SA 82 (WCC)" 2020 PELJ 1-28
World Bank World Development Report for 2000/01 World Bank World Development Report for 2000/01: Attacking Poverty (World Bank Washington DC 2001)
Case law
De Beer v The Minister of Cooperative Governance and Traditional Affairs
2020 11 BCLR 1349 (GP)
Democratic Alliance v President of South Africa 21424/2020) [2020] ZAGPPHC 237 (19 June 2020)
East Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane Transitional Local Council 1998 2 SA 61 (CC)
Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)
Harksen v Lane 1998 1 SA 300 (CC)
Khosa v Minister of Defence and Military Defence and Military Veterans
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[2017] ZAGPPHC 1220 (8 November 2017) S v Makwanyane 1995 3 SA 391 (CC)
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GN R480 in GG 43258 of 29 April 2020
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List of Abbreviations
| AHRLJ | African Human Rights Law Journal | |||||
|---|---|---|---|---|---|---|
| CCR | Constitutional Court Review | |||||
| CESCR | United Nations Committee | on | Economic, | |||
| Social and Cultural Rights | ||||||
| COVID-19 | Coronavirus disease 2019 | |||||
| ILO | International Labour Organisation | |||||
| JAL | Journal of African Law | |||||
| OHCHR | Office | of | the | United | Nations | High |
| Commissioner for Human Rights |
PELJ Potchefstroom Electronic Law Journal SA Merc LJ South African Mercantile Law Journal
| A DE MAN | PER / PELJ 2023 (26) | 37 |
|---|---|---|
| SAJHE | South African Journal of Higher Education | |
| SAJHR | South African Journal on Human Rights | |
| SALJ | South African Law Journal | |
| Stats SA | Statistics South Africa | |
| UNDP | United Nations Development Programme |