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Following the March 15, 2020, declaration of a national state of disaster due to the COVID-19 pandemic, the South African Minister of Cooperative Governance and Traditional Affairs issued regulations criminalizing false claims relating to ones’ own or another person’s COVID-19 infection status and the publication of false information relating to COVID-19. Although statistical information about the permeation of this problem and the rate of arrests and prosecutions is limited, news reports indicate that the country’s police have made arrests for alleged violations of the regulations.
As of August 16, 2020, South Africa had conducted 3.4 million tests and recorded 587,345 confirmed COVID-19 cases and 11,839 deaths. A country of around 56.4 million people, it has the fifth highest number of COVID-19 infections in the world, behind the United States, Brazil, India, and Russia.
In an attempt to contain the spread of COVID-19 and mitigate damage from the pandemic, South Africa has taken a number of measures in the last few months. On March 15, 2020, the country declared a national state of disaster under the 2002 Disaster Management Act (DMA). During a state of disaster, the DMA allows the government to issue regulations relating to, inter alia, “the movement of persons and goods to, from or within the disaster-stricken or threatened area,” “the dissemination of information required for dealing with the disaster,” and “other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster.”
Accordingly, the Minister of Cooperative Governance and Traditional Affairs issued regulations under the DMA. Among other things, the regulations criminalize misinformation relating to the COVID-19 pandemic.
II. Freedom of Expression and Limitations
Freedom of expression is guaranteed in the Bill of Rights chapter of the South African Constitution. The relevant provision states that “[e]veryone has the right to freedom of expression, which includes . . . freedom of the press and other media; . . . freedom to receive or impart information or ideas; . . . freedom of artistic creativity; and . . . academic freedom and freedom from scientific research.” However, the freedom of expression clause does not protect “propaganda for war; . . . incitement of imminent violence; or . . . advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
The above rights are not absolute; they may be limited by law in accordance with the Constitution. The limitations of rights clause of the Constitution provides as follows:
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.
2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
In a 2000 decision, the Constitutional Court put in context the list under the limitations clause of the Constitution, stating that
[i]t should be noted that the five factors expressly itemised in section 36 are not presented as an exhaustive list. They are included in the section as key factors that have to be considered in an overall assessment as to whether or not the limitation is reasonable and justifiable in an open and democratic society. In essence, the Court must engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list.
Whenever a limitation of a right by the government is challenged before it, the South African Constitutional Court engages in a two-stage analysis: whether the law being challenged infringes on the rights accorded under the Bill of Rights, and if so, whether such infringement is justifiable. In a 2002 decision, the Constitutional Court noted as follows:
This is essentially a two-stage exercise. First, there is the threshold enquiry aimed at determining whether or not the enactment in question constitutes a limitation on one or other guaranteed right. This entails examining (a) the content and scope of the relevant protected right(s) and (b) the meaning and effect of the impugned enactment to see whether there is any limitation of (a) by (b). Subsections (1) and (2) of section 39 of the Constitution [the interpretation of Bill of rights clause] give guidance as to the interpretation of both the rights and the enactment, essentially requiring them to be interpreted so as to promote the value system of an open and democratic society based on human dignity, equality and freedom. If upon such analysis no limitation is found, that is the end of the matter. The constitutional challenge is dismissed there and then… If there is indeed a limitation, however, the second stage ensues. This is ordinarily called the limitations exercise. In essence this requires a weighing-up of the nature and importance of the right(s) that are limited together with the extent of the limitation as against the importance and purpose of the limiting enactment. Section 36(1) of the Constitution spells out these factors that have to be put into the scales in making a proportional evaluation of all the counterpoised rights and interests involved.
According to the Constitutional Court, “[a]s a general rule, the more serious the impact of the measure on the right, the more persuasive or compelling the justification must be.
III. False Information Relating to COVID-19
The abovementioned regulations issued under the Disaster Management Act criminalize false claims relating to a person’s COVID-19 infection status, stating that
[a]ny person who intentionally misrepresents that he, she or any other person is infected with COVID-19 is guilty of an offence and on conviction liable to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment.
The publication of false information relating to COVID-19 is also criminalized. The regulations state that
[a]ny person who publishes any statement, through any medium, including social media, with the intention to deceive any other person about—
(b) COVID-19 infection status of any person; or
(c) any measure taken by the Government to address COVID-19,
commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding six months, or both such fine and imprisonment.
In a June 2, 2020, decision, the High Court of South Africa at Pretoria declared various parts of the regulations unconstitutional. However, the decision does not appear to be applicable to the above provisions.
The South African Police Service (SAPS) has reportedly opened close to 230,000 cases relating to possible violations of lockdown regulations since late March 2020. However, aside from news reporting of individual cases, it has not been possible to discern arrests and prosecutions for misrepresentations and publishing false information relating to the pandemic. For instance, an April 7 news report noted the arrest of a 55 year old man in Cape Town for publishing a social media message encouraging the public to refuse COVID-19 tests, claiming, without any evidence, that the cotton swabs being used by the government for testing were infected with CODID-19. Another report on the same day indicated that SAPS arrested eight people (including the person mentioned above) for dissemination of false information.
Prepared by Hanibal Goitom
Chief, FCIL I
 Id. § 16(2).
 Id. § 36.
 S v Manamela and Another, supra note 9, para. 32.
 Regulations Issued in Terms of Section 27(2) of the Disaster Management Act, 2002, § 14(1). Although the regulations were originally published on April 29, the first time such actions were criminalized was on March 18. Disaster Management Act, 2002: Regulations Issued in Terms of Section 27(2) of the Act, § 11(4) & (5), GN No. 318 (Mar. 18, 2020), https://perma.cc/6S9F-CRFT. The current iteration of the regulations appear to be the same as the March 18 version.
 Id. § 14(2).
Last Updated: 12/30/2020