What are your rights when it comes to forced COVID-19 testing?

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As the COVID-19 pandemic is spreading across the globe, Minister of Health, Zweli Mkhize has expressed his concern that there is not enough testing being done in South Africa. By the 14th of April, 83,663 tests had been conducted in South Africa according to www.worldometers.info.

During the early stages of this pandemic, it was far clearer which individuals should be tested – individuals who show symptoms who have travelled overseas. Now, it is far more difficult to determine which individuals to target and this could result in disastrous consequences if at-risk individuals and communities are overlooked.  to establish which individuals to target when it comes to testing.

As more tests will be conducted in the following weeks, you might be wondering if you can be forced by the government to undergo testing, even if you show no symptoms of the COVID-19 virus. In short, yes you can. As of late, to undergo forced testing of the COVID-19 virus is not considered to be in contravention of your constitutional rights as a South African citizen. During President Cyril Ramaphosa’s Nation Address on the 15th of March, he declared a national state of emergency in response to the COVID-19 pandemic. On the 23rd of March, President Ramaphosa announced the unimaginable by stating that South Africa will enter a nationwide lockdown from midnight on 26 March until midnight on 16 April. On the 9th of April, President Ramaphosa announced that the lockdown will be extended by another 2 weeks, until the end of April.

After the declaration of the pandemic as a national state of disaster, the government issued regulations to be incorporated in the Disaster Management Act to flatten the curve and manage the spread of the virus. It comes as no surprise that these regulations limit several of our constitutional rights as South Africans e.g. right to privacy and right to freedom of movement during the lockdown period. It is important to note that section 36 of the Constitution states:

“36. (1) 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—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.” (Constitution of the Republic of South Africa, 1996)

The regulations included in the Disaster Management Act thus qualifies as a law of general application and can limit the rights of South Africans as stated in the Constitution.

In conclusion, under the new regulations, individuals cannot refuse to be tested for COVID-19. If the individual tests positive, the individual can also not refuse treatment or quarantine as these measures are put in place to manage the spread of the virus.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)