This bulletin was authored by Fasken associate Tshepiso Rasetlola, candidate attorney Asithandile Liwela and reviewed by senior associate Venolan Naidoo.
Covid-19 is a viral infection which attacks the upper respiratory system and presents flu-like symptoms ranging from, amongst others, mild fever, dry cough, runny nose and sneezing. It is transmitted through droplets suspended in the air during coughing and sneezing from an infected source.
Covid-19 was declared a global pandemic by the World Health Organisation. On 15 March 2020, President Ramaphosa declared a national state of disaster in terms of the Disaster Management Act ("Act ") and government has been taking measures to curb the spread of the disease. Government has further published regulations as per the Act, to prevent the spread of the disease.
In terms of Regulation 318, which was issued on 18 March 2020 in terms of section 27 of the Act ("Regulation"), no person who has been confirmed as having covid-19, who is suspected of having contracted covid-19 or who has been in contact with a person who is a carrier of covid-19, may refuse consent to an enforcement officer for submission to medical examination, admission to health establishment or a quarantine or isolation site or submission of that person to mandatory prophylaxis, treatment, isolation or quarantine in order to prevent transmission. If a person does not comply with the instruction or order of the enforcement officer, that person must be placed in isolation or quarantine for a period of 48 hours, as the case may be, pending a warrant being issued by a magistrate on application by an enforcement officer for the medical examination. a warrant may be issued by a magistrate if it appears from information on oath or affirmation by an enforcement officer that the no person is confirmed as having covid-19, is suspected of having contracted covid-19 or has been in contact with a person who is a carrier of covid-19.
Put briefly, no person who has covid-19, who is suspected of having covid-19 or who has been in contact with someone who has covid-19 may refuse testing, admission to a health establishment, quarantine or isolation. Consequently, this drastic measure by government raises some concerns regarding those individuals’ rights, particularly the right to refuse medical treatment.
Section 12 of the Constitution recognizes the right to freedom and security of the person, particularly the right to bodily integrity. Therefore, forcing a person to undergo mandatory treatment or isolation is to deprive them of such rights. However, this right, much like other rights in the constitution may be limited if it is reasonable and justifiable to do so in an open and democratic society taking into account certain factors.
The National Health Act, 61 of 2003 was promulgated on 2 May 2005 ("NHA"). In terms of the NHA, no health service may be provided to a user without the user’s informed consent unless the provision is allowed in terms of any law or a court order or the failure to treat the user or group of people will result in a serious risk to public health. Quite evidently, the NHA recognizes the limitation of the right to refuse medical treatment if it is necessary to protect the interests of the public.
In Minister of Health, Western Cape v Goliath and others it was pronounced that isolation at a facility amounts to deprivation of freedom. However, it was held further that “isolation of patients with infectious diseases is universally recognized in open and democratic societies as a measure that is justifiable in the protection and preservation of the health of citizens, even though it necessarily involves some intrusion upon the individual liberty of the patients concerned”. Consequently, the court found that the limitation of rights in such cases is accordingly reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom.
The court also read section 7 of the NHA to be wide enough to encompass involuntary isolation of patients with infectious diseases.
The measures implemented by government in the Regulation, not only in the forced isolation and quarantine, but also in the prevention of public gatherings which are not covered here, are therefore justifiable limitations on individual freedom for the protection of the greater public health. The measures are to prevent and/or mitigate the potential exposure and infection of the Covid-19 virus to others. As well publicized, Covid-19 is fairly contagious and increases with infections at a rapid rate. Given this, it further reinforces the legal position on the justifiable limitation of an individual’s right to freedom in the above circumstances.
 Notice on compensation for occupationally acquired novel coronal virus disease (covid-19)
 Regulations issued in terms of section 27(2) of the Disaster Management Act, 2002, section 4
 The Constitution of the Republic of South Africa, section 12
 Ibid, section 36
 The National Health Act, 61 of 2003, Section 7.
 2009 (2) SA 248 (C)