Following the threat of legal action by AfriForum, the KwaZulu-Natal government has withdrawn the threat by Premier Sihle Zikalala that people who test positive for COVID-19 will be forced into quarantine camps regardless of whether they are effectively self-isolating. The action will, however, proceed.
The statement reads: The retraction over the past weekend followed a lawyer’s letter from AfriForum sent to Nkosazana Dlamini-Zuma, Minister of Cooperative Government and Traditional Affairs, regarding Zikalala’s threat. The regulations issued by Dlamini-Zuma still empowers government officials to do exactly what Zikalala threatened to do, however, and AfriForum therefore plans to continue with legal action in this regard.
In its lawyer’s letter to Dlamini-Zuma, AfriForum stated that the regulations – which stipulate that people can be criminally prosecuted if they refuse to cooperate with government instructions and be taken to one of these quarantine camps – is irrational, because it empowers government to forcefully send people who tested positive for COVID-19 but are effectively self-isolating to such camps.
“This is not only irreconcilable with a society that claims to cherish basic freedoms. The consequence is that people simply wouldn’t have themselves tested for COVID-19. Moreover, the regulations place an irrational burden on government resources,” says Ernst Roets, head of policy and action at AfriForum.
A Sunday Tribune report said that healthcare workers had vowed not to have COVID-19 tests if the KZN Health Department went ahead with a policy of placing those who test positive in government-run quarantine facilities. Labour unions and AfriForum say refusing infected people the right to self-isolate is "draconian" and undemocratic.
The quarantine issue arose when Nomagugu Simelane-Zulu, KZN’s MEC for Health, said due to the province recording the highest number of COVID-19 deaths in the country (at that stage) and numerous reports that those who tested positive had not adhered to self-isolation requirements.
Premier Sihle Zikalala reinforced the stance and said that the days of self-isolation were over and that stricter application of regulations were necessary. Zikalala said those who tested positive would go to government quarantine sites and would be released once fully recovered.
An unnamed healthcare worker at a state facility reportedly said being denied the right to self-isolate was “draconian” and would place more of a “stigma” on those who got sent to government quarantine sites. ‘Such a stance would disincentivise voluntary testing. In a democracy, you should have a right to choose. We’re fighting in the front line against this virus, but we are not getting the desired reciprocity from the government.’ The medic accused the Health Department of making a blanket ruling because of some reckless people.
A doctor at a private hospital also took issue with the policy, asking why the government was prepared to needlessly spend on patients who could afford their own treatment and food? Yet, the same resources could be availed for people from poorer communities. The doctor also warned that those who were housed in quarantine-sites needed to continue to maintain high standards of hygiene. “If not, when people are persistently exposed to a COVID-19-rife environment, it will cause an increase in the mortality rate.”
The Sunday Tribune report also quotes Dr Mvuyisi Mzukwa, vice president of the SA Medical Association, as saying they were in "disbelief" of the position taken by the KZN authorities. Mzukwa said there was no formal regulation in place that compelled people to go into quarantine, and apart from a media statement, there has been no official communication by the department to the local medical fraternity about quarantining matters. He believes the quarantine comments were “reckless”.
The issue is unpacked in a Spotlight report. Treatment Action Campaign national chair Sibongile Tshabalala says that even though the government was trying to do the right thing by isolating people, forcing isolation was not right. “To take a person without his or her consent is a violation of human rights. That’s where we feel like people will not go for testing because they fear they will be forced into isolation. The only person you have the right to take without his or her consent is someone who has committed a crime, and testing positive with COVID-19 is not a crime,” she is quoted is the report as saying.
The report notes regulations released in terms of the Disaster Management Act appear to allow provinces to force people to isolate in state facilities. Regulation four states that no person who tests positive for the virus may refuse admission to an isolation or quarantine site. Regulation five states that if someone refuses, the province can get a court order forcing them to go. Whether or not these state facilities should be reserved for those who cannot safely self-isolate at home, is not explicitly outlined in the regulations. The only caveat is in Regulation 11D; that the state must identify “temporary sites for quarantine and self-isolation that meet the necessary hygiene standards for people who cannot isolate or quarantine in their homes”.
The matter is addressed by attorney Tess Peacock, executive director of the Equality Collective that is part of the C19 People’s Coalition, who says: “If one reads Regulation four and five in isolation, then, one, it would seem that no person can refuse to be admitted into a quarantine or self-isolation facility if they have contracted COVID-19, or are suspected of having contracted COVID-19, or have been in contact with a person who is a carrier of COVID-19 and two, if a person refuses to go then the state can seek an order from a magistrate court to force them to go.”
However, Peacock adds that regulations should never be read in isolation of each other, notes Spotlight. “Regulation 11D seems to make it clear that these temporary quarantine and self-isolation facilities are identified and set up for people who cannot self-isolate or quarantine at home,” she says.
“I do, however, think that the state is entitled to be satisfied that self-isolation and quarantine at home is actually (or objectively) possible. If the state is not satisfied, then I think they have the powers to admit someone to such a temporary facility,” says Peacock.
The report says Tshabalala agrees. “A person needs to be given a chance and evaluated by the state if they are able to be isolated by the public or if they are able to isolate themselves,” says Tshabalala. “We understand that for people in informal settlements and (similar areas), it might be difficult to self-isolate; in that case, a person needs to be mentally prepared.”
GroundUp reports the Legal Resources Centre (LRC) – acting on behalf of the Poor Flat Dwellers Movement – had placed government on terms to immediately clarify comments by politicians that people will be detained for “lengthy periods” should they buck the law.
The centre – in a written demand to Dlamini-Zuma – said not only is this unconstitutional, but it is also unlawful in terms of the present disaster regulations. The lawyers point specifically to Regulation 4 (1) which states that no person who has been confirmed as a clinical case or as a laboratory confirmed case as having contracted the virus, or who is suspected of having it, or who has been in contact with someone who has it, may refuse to consent to a medical examination, including, but not limited to, taking any bodily sample, or to be admitted to a health establishment, quarantine or isolation site. It also provides that if a person does not comply with the instruction, they may be placed in quarantine for a period of 48 hours, or longer on court authority, for the “medical examination”.
The LRC has submitted that the regulation “creates a drastic and serious inroad into the freedom and liberty of persons”. “It contemplates the detention of a person for an initial 48 hours and, with the consent of the court, even longer. But on the plain reading of the regulation, authority is only given for an examination of a person who is a confirmed case or suspected of being a carrier,” it said.
According to the GroundUp report, the LRC said if the regulation was intended to isolate or quarantine someone beyond the duration of an examination, it would have been framed differently. “There have been threats by various authorities to detain people for a lengthy period of time. Our client is concerned about abuses that may prevail.”
It said the Minister, as the author of the regulation, should have given guidance on the correct interpretation but had failed to do so. It said if the Minister does not delete or suitably amend it, an application will be made to a High Court to have it declared invalid, or for an order declaring the movement’s interpretation to be correct.
[link url="https://www.polity.org.za/article/kzn-premier-retracts-threat-of-quarantine-camps-after-afriforum-threatens-with-legal-action-2020-04-28"]AfriForum statement on the Polity site[/link]
[link url="https://www.pressreader.com/south-africa/sunday-tribune-south-africa/20200426/281900185359947"]Full Sunday Tribune report (subscription needed)[/link]
[link url="https://www.spotlightnsp.co.za/2020/04/27/covid-19-the-legal-and-public-health-sides-of-forced-isolation/"]Full Spotlight report[/link]
[link url="https://www.groundup.org.za/article/covid-19-dlamini-zuma-faces-challenge-over-threat-lock-infected-people/"]Full Groundup report[/link]