On 15 March 2020, President Cyril Ramaphosa declared a national state of emergency in response to the COVID-19 pandemic in South Africa. And just a week later, like many other countries around the world, South Africa entered a total national lockdown which lasted 5 weeks before being gradually eased towards the end of the year.
During the early stages of this pandemic, it was evident which individuals should be tested – those showing symptoms after travelling overseas.
Now, 11 months after the first positive case was identified in the country, it has become far more difficult to determine which individuals to target. This could result in disastrous consequences if at-risk individuals and communities are overlooked as the COVID-19 pandemic continues to make waves across the globe.
Since March 2020, South Africa has sustained its testing for the virus, with more than 8,369,287 tests being by 3 February 2021. With more and more individuals, families and workplaces and businesses affected by this disease, you might wonder whether you can be forced by the government to undergo testing, even if you show no symptoms of COVID-19.
In short, yes you can.
Undergoing forced COVID-19 testing is not considered a negation of your constitutional rights as a South African citizen, which is largely due to the country’s state of disaster.
After its declaration of the national state of disaster, the South African government issued regulations to be incorporated in the Disaster Management Act that aimed to “flatten the curve” and manage the spread of the virus. Some of these regulations limited several of our constitutional rights during the lockdown period (e.g. the right to privacy and to freedom of movement).
Note Section 36 of the Constitution, which 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.
Under the new regulations instituted through the national state of disaster, individuals cannot refuse to be tested for COVID-19. If the individual tests positive, they also cannot refuse treatment or quarantine, as these measures are put in place to manage the spread of the virus.
You can indeed be forced to test for COVID-19.
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)