Between a rock and a hard place: COVID-19 and South Africa’s response

In December 2019, a cluster of pneumonia cases was reported in China, which eventually led to the identification of the first case of COVID-19. Since then, COVID-19 has spread across Asia to Europe and through to the USA before the first case was reported in Egypt on February 14.1 Daily updates from the Africa Centres for Disease Control (Africa CDC) show that the number of recorded cases has risen daily with (as of June 18, 2020) 52 African Union Member States reporting 267,519 cases, 7197 deaths, and 122,661 recoveries.2 Together with Egypt and Algeria, South Africa was considered to be at the highest risk of the virus being imported and spreading with a moderate to high capacity to respond to an outbreak.3 South Africa’s National Institute of Communicable Diseases (NICD) reported its first confirmed case on March 5, 2020. Since then, the number of recorded cases has steadily increased, but not at the exponential rate that was initially expected.4 To date (June 16, 2020), 73,533 confirmed cases and 1568 deaths have been reported by the NICD. With the arrival of COVID-19, the initial advice to South Africans focused on regular hand washing and social distancing. However, the declaration of COVID-19 as a pandemic by the World Health Organization (WHO) on March 11, 2020, the global daily rise in reported cases, but crucially, the first case of community transmission in South Africa recorded, prompted President Cyril Ramaphosa and his government to act. Although the number of cases at the time remained relatively low (61 confirmed cases; 0 death), a national State of Disaster was declared on March 15, 2020, and a series of measures limiting the rights of South Africans were announced. Decisive action was indeed necessary. South Africa is a deeply unequal society.5 Only 16 per cent of the South African population has access to medical aid,6 with most of its population relying on the public healthcare sector that is underresourced and poorly administered. In its 2016–2017 Annual Inspection Report, the Office of Health Standards reported that out of 851 public sector health establishments, 62 per cent of these were non-compliant with the norms and standards for healthcare quality. Areas of deficiencies identified included a lack of or poor leadership and management, knowledge, competencies, and support from senior staff.7 In addition, the South African healthcare system carries a significant burden of tuberculosis (TB), HIV, and HIV/TB co-infection, with millions of the population on immunosuppressant drugs as well as others who are HIV positive but not receiving treatment for HIV.8 There are concerns that those with these comorbidities are more susceptible to SARS-CoV2 infections and have a higher risk of developing severe COVID-19 disease.9 Data shows that the younger populations have also been affected more than in other parts of the world.10 COVID-19 has disrupted the provision of routine healthcare in other parts of the world and will likely similarly affect South Africa, including the delivery of South Africa’s routine chronic illnesses and its TB and HIV antiretroviral programs. South Africa’s already overstretched public healthcare system is thus unlikely to be able to withstand an explosion of COVID-19 cases, particularly when considering that better managed healthcare systems in some high-income countries (HICs) are overwhelmed. Preventing and containing the spread of COVID-19 in South Africa was thus a critical priority. In drafting the government’s response to the virus, President Ramaphosa and his Cabinet had the opportunity to learn from the experiences of Asia and Europe that focused on social distancing, self-isolation, quarantine, testing, and lockdown. While such strategies have been proven effective in limiting and at times containing the spread of the virus, the socio-economic realities in South Africa limit their effectiveness. Public health strategies such as regular hand washing and social distancing that have proven to be effective in limiting the spread of the virus elsewhere are cheap preventive measures, but they are a privilege that many cannot afford in South Africa. Approximately 13 per cent of all households are located in informal settlements that are poorly structured, cramped, and at times lack access to running water.11 Self-isolation and quarantine are practically impossible in situations where several people share a bedroom or indeed for the estimated 200,000 people who are currently homeless in South Africa. A significant portion of the population relies on cramped and overcrowded public transport, with 69 per cent using public taxis, 20.2 per cent using buses, and 9.9 per cent using the trains.12 All of these factors highlight the impracticality of maintaining social distancing and challenges in ensuring good hygienic hand washing practices in these types of settings.13 Despite these socio-economic realities, South Africa’s COVID-19 response needed to focus on containing and slowing down the spread of the virus. It is unsurprising that the regulations promulgated under the State of Disaster mainly focused on severely limiting the freedom of movement and assembly of its citizens. It was clear from the outset that this would have a considerable economic impact, and on March 31, South Africa was downgraded to junk status with the South African Rand falling to a record low.14 President Ramaphosa was left with a choice of sacrificing the economy to slow the spread of the virus or putting the economy first and risk exposing an already weakened healthcare system and population suffering from other comorbidities to the virus. Faced with this choice, his decision to lockdown the country cannot be criticized and may prove decisive in containing and slowing down the spread of the virus. Considering the time it took to reach its borders, South Africa had time to prepare a COVID-19 response and draw on the importance of its community-informed response to other epidemics. However, despite the impact that these regulations were going to have on civil society, the lack of public deliberation and community engagement in developing these regulations is concerning. Furthermore, the criminalization of non-compliance with these public health measures seeks to undermine their aims, has the potential to increase stigma and discrimination of the disease, and fails to address the real issue: ensuring that the population has the means to comply with the regulations. Combined, these factors question whether South Africa has learned from its response to its HIV epidemic. In outlining the first month of South Africa’s COVID-19 response, this paper will critique the lack of engagement and the criminalization of non-compliance and discuss their potential impact. On March 15, 2020, President Ramaphosa addressed the nation and announced a national State of Disaster. A State of Disaster is distinct from a State of Emergency. The power to declare a State of Emergency derives from Section 37 of the Constitution, and it must be declared within the terms of the State of Emergency Act 1997. It can only be declared when ‘the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency’ and ‘the declaration is necessary to restore peace and order’. Upon declaration of a State of Emergency, certain rights under the Bill of Rights may be derogated from, with the exception of those non-derogable rights expressly contained within Section 37(5), which includes the rights to dignity, life, and a fair trial. A State of Emergency can only last for 21 days, unless the Parliament decides to extend this declaration by 3 months at a time. The first extension must be done by a majority of Parliament, and any subsequent extension requires the support of 60 per cent of Parliament. Any court within South Africa has the power to decide on the validity of the State of Emergency, an extension of the State of Emergency, or any regulations promulgated as part of the State of Emergency. Parliament and the courts thus clearly have a supervisory role under the State of Emergency. A partial State of Emergency was declared by President PW Botha in 1985 that extended to the entire country in 1986, permitting the then President to rule by decree, detain citizens without trial, restrict the freedom of movement, and give the police and military considerable powers, which continued until 1990. A State of Emergency has not been declared since the establishment of a democratic South Africa in 1994. The Constitution does not make provision for the executive power to declare a State of Disaster. This is made possible through the Disaster Management Act 2002. This Act gives the relevant Minister the power to limit certain rights and freedoms within South Africa through the promulgating of regulations. A State of Disaster lasts for 3 months (unless it is terminated) and can be extended by the Minister 1 month at a time. Although rights may be limited, they cannot be derogated from, and any regulations promulgated must conform to the Bill of Rights. The courts can declare a State of Disaster invalid (and indeed the current State of Disaster was challenged and dismissed by the Constitutional Court15) or any regulations promulgated under the State of Disaster (on June 2 the regulations were struck down as unconstitutional16). Unlike the State of Emergency, there is no clear oversight role for Parliament in a State of Disaster. Parliament is not precluded from meeting during this time, but limitations on the freedom of assembly may affect the ability of Parliament to convene. To meet the criteria under the 2002 Act for a ‘disaster’, there must be the presence of a disaster that is defined as a ‘progressive or sudden, widespread or localised, natural or human-caused occurrence which causes or threatens to cause death, injury or disease; damage to property, infrastructure or the environment; or disruption of the life of a community’. COVID-19 clearly falls within the definition of a disaster under the 2002 Act and on March 15, 2020, President Ramaphosa granted Dr Nkosazana Dlamini-Zuma, the Minister of Cooperative Governance and Traditional Affairs, the power to limit certain rights and freedoms within South Africa. A series of restrictions were announced on the same day, with further restrictions announced on March 23, 2020.17 Among others, the regulations criminalized the spread of disinformation, prohibited the sale and transportation of cigarettes and alcohol from midnight on March 26 for 3 weeks (that was further extended by 2 weeks on April 9, 202018), and controlled the prices of certain essential products. For the purposes of this article, we will focus on the restrictions to the freedom of movement and assembly. Strategies for containing the spread of COVID-19 that have been implemented elsewhere focus on social distancing, isolating, limiting the movement of citizens, and testing and quarantining of those who have tested positive. Such measures are at the heart of South Africa’s response. Initially gatherings were restricted to 100 individuals, and establishments that served alcohol could have no more than 50 individuals. As of midnight on March 26, all gatherings, including gatherings for prayer, were prohibited for 3 weeks, with the exception of funerals that were limited to 50 individuals. As of midnight on March 26, all but essential movement were prohibited for 3 weeks (and extended until April 31), in what is known locally as a lockdown. The leaving of a home was only permitted to buy essential goods, seek medical attention, buy medical products, collect social grants, attend a funeral of no more than 50 people, access public transport for essential services, or attend work that is deemed to be an essential service during specified times. The leaving of a house for exercise or to walk a dog was prohibited, and the movement between provinces and districts was prohibited. These restrictions were extended by a further 2 weeks on April 9, and the total ‘hard’ lockdown period lasted until April 30. The regulations introduced also state that anyone who is suspected of having COVID-19 or has been in contact with a person who has tested positive for COVID-19 cannot refuse testing. If confirmed positive, they cannot refuse treatment, isolation, or quarantine. Similar provisions already exist in the Regulations Relating to the Surveillance and Control of Notifiable Medical Conditions gazetted in June 2017 under the National Health Act 2003. Under this regulation, if a person refuses to consent to the testing, treatment, isolation, or quarantine of a notifiable medical condition, the head of a provincial department can apply to the High Court to require the mandatory testing, treatment, isolation, or quarantine of that individual. Failure to comply may result in imprisonment not exceeding 12 years, a fine, or both. The COVID-19 regulations, however, and an to the court for the mandatory testing, treatment, isolation, or quarantine is that person can be in or quarantine for Furthermore, the power to make this is in the of an defined as including a of the South African the South African National a peace and not the head of a provincial the restrictions on movement and it was or that the transmission of the virus would be However, these restrictions extend the restrictions on freedom of movement and assembly under the Although these restrictions were introduced in response to a public health and is a to the restrictions on the freedom of movement in the lockdown period have been with some The of the South African the measures introduced as to those with a State of Emergency and that President Ramaphosa was to that to its with Considering the total on the of assembly the exception of a and the severe limitations on the freedom of movement, the of these measures is indeed more to a State of Emergency in the of these Furthermore, in the first of South Africans learned of the government’s to the population in overcrowded settlements across the country by of from their in an to slow the spread of the that this it of in of of the government’s declaration of as a Conditions at for the of COVID-19 lockdown for homeless people to slow down the spread of the virus are a cause for of these homeless people have they have been to to the The restrictions on freedom of movement are within the granted under the 2002 Act and in with the World Health Organization (WHO) on the spread of the virus. The declaration of a State of a Disaster and the subsequent regulations can be and declared invalid by a and the measures conform to the of However, it is the on the for non-compliance with the restrictions that we to be and to good public health but also fails to the socio-economic realities for South Africa, and indeed Africa, is no to epidemics. On the declared a Public Health Emergency of in response to the Africa that on for 2 South Africa currently has a HIV and is a TB and considerable has its testing, and treatment While is the importance of community engagement is clear in developing any response to an and that are likely to be by the the the initially prohibited practices for but these had to be and were in with the affected South Africa similarly learned that testing, and treatment must the community and are essential in Public engagement is thus essential at a in the of and at a community engagement can support the of a any must be to of healthcare and For the COVID-19 measures to it is necessary to what to meet these measures, and an is community South Africa draw on its considerable in community engagement to that the regulations address COVID-19 and not result in stigma and discrimination or affect the poor and health A response for COVID-19 is thus While President Ramaphosa clearly in his March address to the nation that with and there to be a lack of with those in cramped informal settlements who will to comply with these The lockdown those in the informal sector from and access to a hand to they are unlikely to have in the decision that some of the lockdown regulations to be the Court to the millions of informal who have their to their and of their of dignity, to a and to for the of Approximately South Africans on social as their only in and a support person of and a others in terms of the Act 13 of However, with many more South Africans left there will be more within the relying on these While a number of measures at the impact of the measures were including an increase in some of the social grants, it is estimated that per cent of South African are not to access some of the that were made The South African government’s response is by an on and in the power of the This response was with President Ramaphosa in military on the the lockdown Failure to comply with some of the lockdown restrictions may result in imprisonment of to a fine, or both. The South African National has also been with Under the 2002 and other may be and the of the the March President Ramaphosa announced that had the to be to support the The presence of the military in the lockdown a in many across South Africa, and they to the regulations. entire of 50 including the and were in the first of April for the on public and who tested positive for COVID-19 were quarantine at a medical However, on June the High Court an government from those who positive for COVID-19 state quarantine if they are able to The High Court that a person is to be or at a state or other quarantine when that person is to or refuses to or the or the first of the there were of the and using and of people were reported to have been by the police during the first of the lockdown in the COVID-19 regulations, which at that time was more than the number of deaths to the It is not the of the and the power to the and that we with but the regulations that have criminalized exposing and COVID-19 to The criminalization of the transmission of HIV, for is considered to be that is in any and only to the and those who have to potential rights In the of there is the that criminalization could have severe on the undermine and public health challenges by the and have a impact on already or criminalized South Africa any to HIV, but it is there has been a response to COVID-19. than citizens to or tested for COVID-19 is likely to those who have or they have COVID-19 are essential in a COVID-19 to this is the spread of South Africa has a considerable from its HIV as there is a of for HIV that and to but a However, the is on the as the spreading of on COVID-19 through any which includes social has been While the spread of is the public the is The South African government has to the of that all for be to the NICD. in South Africa have been not to to the As a result of the is and to respond to many of the Furthermore, of the national response has been with public than engagement with the concerns a of lockdown regulations was announced and of and were by the their concerns and their the of the South African Medical as well as COVID-19 particularly under when criticized the government’s of lockdown as and to the This in led to the South African Health Dr to a in response to public of government as well as a an of by the The was on and was of any the response and of freedom from the other from with the will only further limit the of which is in the spreading of and any These can on testing and There have been that are to who cannot that they not have the The South African Health Minister has that such measures will likely to but with of the meeting the testing criteria it a lack of on this is in the public but in the month since the first case was the public National Health only in total despite that they will per The of testing on April 2020, for testing to address but the is that per cent of all have been in that between and per As of June 16, a total number of were in the public and out of a population of In some South Africa was as it took 3 months for COVID-19 to President Ramaphosa and his had time to learn from the experiences of the in and the The COVID-19 in South Africa was going to out the of other and decisive However, there has been an on the in ensuring and of the socio-economic realities that a of the South African population in overcrowded informal settlements and who have no or limited access to or social As South Africa its of President Ramaphosa was left with a choice of a lockdown that would likely result in the spread of a virus or the lockdown and measures that will affect likely and to a rise in left between a and with no good to only is that would make the will whether a lockdown extension will be the economic impact. 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