On 3 June 2020, the Minister of Cooperative Governance and Traditional Affairs (“the Minister”) was dealt another blow in a decision passed by the Pretoria High Court. Since a national state of disaster was declared on 15 March 2020, the Minister was empowered to promulgate a variety of regulations, commonly known as the “Lockdown Regulations”. The Lockdown Regulations relating to mandatory state quarantine of persons who have tested positive for COVID-19 have recently been subject to an urgent court application brought by AfriForum.
In the urgent application launched on 15 May 2020, AfriForum sought relief to have the quarantine-related sub-regulations 6 and 7 of the Regulations issued in terms of section 27(2) of the Disaster Management Act, 2002 of 29 April 2020 (“the DMA”), declared invalid. Quarantine is defined as “the restriction of activities or separation of a person, who was or may potentially have been exposed, to COVID-19 and who could potentially spread the disease to other non-exposed persons, to prevent the possible spread of infection or contamination to healthy individuals”.
The ream of quarantine-related Lockdown Regulations have included that no person, who has been tested positive for COVID-19, may refuse consent to his or her admission to a health establishment or quarantine isolation site. Refusal may lead to arrest and subsequent criminal prosecution. The Government is further obliged to identify and make available sites to be used as isolation and quarantine facilities. The conditions of these state quarantine facilities have been subject to much criticism. The conditions have been referred to as appalling, with scant regard for human dignity and access to medical care being limited. In the application, AfriForum referred to these regulations as “draconic and irrational [and] were aimed at putting everyone who tests positive for COVID-19 under compulsory state quarantine”.
The nub of AfriForum’s application is that persons who test positive for COVID-19 should not be forced to self-isolate in state quarantine facilities if they are able to effectively self-quarantine themselves. The court ordered that the state may not force any person who tests positive for COVID-19 into compulsory state quarantine if they are able to self-quarantine effectively. This extends to persons who are suspected of having contracted COVID-19 as well as those who have been in contact with a person who is a carrier of COVID-19. State quarantine is therefore mandatory only in instances where a person is unable to self-quarantine, refuses to self-quarantine, or is in violation of the self-quarantine rules. To successfully self-quarantine or self-isolate, a person requires access to a separate room where he or she should self-isolate. The person must also be able to contact and/or return to a health facility if their condition worsens.
This is the second successful court application brought by AfriForum relating to quarantine regulations. The Pretoria High Court ruled earlier this month that the Zithabiseni state quarantine facility near Groblersdal be closed and that 107 people, including children, who had been quarantined in the facility be permitted to go home. In conclusion, AfriForum stated that:
“These regulations give the state the power to force people without their permission into quarantine – even under circumstances where the person may be able to effectively self-isolate. This gives law enforcers and the state too much power under the guise of combatting the spread of the virus.”
It appears likely that the Lockdown Regulations will continue to be the subject of widespread criticism and further legal challenge.
This bulletin was prepared by candidate attorney Emma Alimohammadi and supervised by Nic Roodt.
 Section 27 (2) of the DMA extends the Minister the power, following the declaration of a national state of disaster, to promulgate regulations and issue extensive directions regarding a wide range of aspects.