1.  The Republic of South Africa is a constitutional democracy. The 1996 Constitution is the supreme law of the Republic, any law or conduct that is inconsistent with it is invalid.¹

2.  South Africa has a bicameral Parliament. The National Assembly consists of between 350 to 400 members that proportionally represent votes received in national general elections, which are held every five years. It is supported in the legislative process by the National Council of Provinces, which consists of nine delegations of 10 members from the elected provincial legislatures of each of the country’s nine provinces, and represents provincial interests in the national sphere of government.² In the event of a dispute, the National Assembly typically overrides the National Council of Provinces.³

3.  The President is elected by a majority of the members of the National Assembly, for a five-year term following each general election.⁴ Executive authority in the Republic vests in the President, who is the Head of State and the Head of the National Executive.⁵ The President appoints a Deputy President and a Cabinet. Cabinet ministers are selected from members of the National Assembly, though up to two Ministers may be selected from outside the Assembly.⁶ All powers of the President and all executive powers are exercised subject to the Constitution.

4.  Judicial authority is vested in the Courts, who have the power to declare any law or executive conduct invalid to the extent of its inconsistency with the Constitution.⁷

5.  South Africa is a quasi-federal state, composed of nine provinces.⁸ There are national, provincial, and local spheres of government, which are ‘distinctive, interdependent and interrelated’⁹ and are bound to constitutional ‘principles of cooperative governance’.¹⁰ Each province has its own legislature and executive.

6.  Provinces may adopt their own Constitutions,¹¹ though only the Western Cape Province has successfully done so. Provincial constitutions may provide for different legislative or executive structures or procedures, but may not be substantively inconsistent with the national Constitution.¹² Provincial legislatures are competent to pass legislation in a number of functional areas listed in two Schedules to the 1996 Constitution.¹³ For functional areas listed in Schedule 4, which include health services, legislative competence is shared with national government. Schedule 5 contains the functional areas, including ambulance services, where the provinces have exclusive powers. In the event of conflict between national and provincial legislation, national legislation typically prevails.¹⁴

7.  There are 257 municipalities divided into three categories: eight metropolitan, 44 district, and 205 local municipalities. Schedules 4B and 5B of the 1996 Constitution list functional areas—including ‘municipal health services’, ‘cleansing’, ‘public places’, ‘local amenities’, and ‘refuse removal’ in relation to which municipalities have executive authority and the right to pass and administer by-laws, subject to national and provincial oversight and support.¹⁵ By-laws that conflict with valid national or provincial laws are invalid.¹⁶ Some municipalities also exercise delegated powers in other functional areas, such as health and housing.¹⁷

8.  Law-making is divided between legislative instruments such as Acts of Parliament, Provincial Acts, and municipal by-laws; the common law administered by judges of the higher courts and subordinate/delegated legislation (such as proclamations and regulations) promulgated by the executive. All laws and all executive action are subject to judicial review for adherence to the 1996 Constitution.

9.  The response to the pandemic has not changed the basic constitutional structure of the state.

10.  South Africa has a dualist legal order in respect of international legal obligations. International agreements bind the Republic after they have been approved by resolution in both the National Assembly and National Council of Provinces and become binding law when enacted by Parliament. Self-executing provisions of international instruments are directly applicable unless they are inconsistent with the Constitution or an Act of Parliament.¹⁸ When interpreting any legislation, courts are obliged to prefer any reasonable interpretation of legislation that is consistent with international law over any that is not.¹⁹

11.  There has been no derogation from any international convention in the course of the pandemic response.

12.  An extensive, justiciable Bill of Rights is contained in chapter 2 of the 1996 Constitution. In addition to relevant fundamental freedoms (such as freedom and security of the person and freedom of movement) the Bill of Rights also guarantees justiciable socio-economic rights such as access to adequate housing, access to health care services, and access to social security. Courts must refer to international law when interpreting the Bill of Rights.²⁰

13.  Section 36 of the 1996 Constitution provides that rights in the Bill of Rights may only be limited in terms of law of general application that is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account factors such as the nature of the right, the importance of the purpose of the limitation, and less restrictive means to achieve the purpose.

14.  There is a detailed constitutional provision governing the declaration of states of emergency, the concomitant derogation of rights, and judicial oversight. Section 37 of the 1996 Constitution determines that states of emergency may be declared only ‘when the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency’, and includes a table of rights that may not be derogated from.²¹ This provision is supplemented by the State of Emergency Act (64 of 1997).

15.  The state opted not to declare a state of emergency in response to the Covid-19 pandemic. Instead, it has responded to the pandemic under the framework of prevailing disaster management legislation, as elaborated in Part II.B below. This means that rights may not be derogated from in the course of the response to the pandemic. Any limitation of rights in the Bill of Rights in the course of the pandemic must thus comply with the provisions of section 36 of the 1996 Constitution.

16.  South Africa became a party to the World Health Organization’s (WHO) International Health Regulations (IHR) on 15 June 2007.²² Their domestic incorporation in terms of legislation is incomplete, with the International Health Regulations Bill, 2013 having been published for public comment on 14 October 2013 but not yet tabled in parliament.²³

17.  National regulations and directions prescribing WHO standards in the course of the Covid-19 pandemic have included those pertaining to wearing gloves and facemasks,²⁴ using alcohol-based hand sanitisers,²⁵ transportation to quarantine facilities,²⁶ and health and safety at the workplace.²⁷

18.  There was no new general law introduced to provide emergency powers in response to Covid-19.

19.  The Disaster Management Act (57 of 2002) provides the basic framework for dealing with Covid-19 in South Africa. As per its long title, the objectives of the Act are to provide for ‘an integrated and co-ordinated disaster management policy that focuses on preventing or reducing the risk of disasters; mitigating the severity of disasters; emergency preparedness; rapid and effective response to disasters and post-disaster recovery; the establishment of national, provincial and municipal disaster management centres; disaster management volunteers and matters incidental thereto’. The Act was amended by the Disaster Management Amendment Act (16 of 2015). Among others, the objective of the amendment was to provide an enforcement role for the South African National Defence Force (SANDF) and the South African Police Service (SAPS).

20.  While the definition of a ‘disaster’ in section 1 of the Disaster Management Act 2002 includes any ‘widespread, or localised, natural or human-caused-occurrence which causes or threatens to cause death, injury or disease’ and can thus be applied to Covid-19, the Act does not contain any provisions pertaining to the control of infectious diseases. Instead, it provides a broad framework and confers the executive powers necessary for the coordination and management of a wide range of natural and man-made disasters. Infectious disease control in South Africa ordinarily takes place in terms of Regulations Pertaining to the Surveillance and Control of Notifiable Medical Conditions²⁸ promulgated pursuant to section 90 of the National Health Act (61 of 2003). These regulations played only a supporting role in the management of Covid-19.

21.  The Disaster Management Act 2002 provides for the declaration of national, provincial, or municipal states of disaster by, respectively, the designated national Minister, the premier of a province or municipal leadership.²⁹ It further provides for the establishment and operation of disaster management frameworks, disaster management centres, disaster advisory forums, and disaster management plans at national, provincial, and municipal levels, as well as for intergovernmental relations and cooperation between these structures.

22.  Section 23(3) of the Disaster Management Act 2002 determines that a national state of disaster must be declared where a disaster involves more than one province or cannot be managed effectively by a single province. During national states of disaster, section 26(3) of the Act determines that provincial and municipal disaster management authorities must cooperate with, and provide necessary support to, the national executive.

23.  Under section 27(5) of the Disaster Management Act 2002, a national state of disaster lapses three months after it has been declared, or may be terminated by the relevant Minister by notice in the Government Gazette before it lapses, or may be extended by the Minister for 30 days at a time.

24.  On 15 March 2020, the President announced that, in response to Covid-19, the Minister of Cooperative Governance and Traditional Affairs had declared a national state of disaster, across the entire Republic, in terms of section 27(1) of the Disaster Management Act 2002.³⁰ The initial state of disaster lapsed on 15 June 2020. Thereafter, it was repeatedly extended for a further month, until the final state of disaster came to an end at midnight on 4 April 2022. Some transitional provisions remained in place for a further period of 30 days.³¹

25.  Executive officials are typically delegated specific rule-making authority by Acts of Parliament. The Constitution determines that all delegated legislation (such as proclamations and regulations) must be in written form and must be accessible to the public.³² Accordingly, all executive rules are published in the Government Gazette. While it does not routinely scrutinize executive rules prior to their promulgation, Parliament is constitutionally obliged to hold the executive accountable and to maintain oversight of the exercise of executive authority.³³ Such accountability and oversight is typically exercised in the course of various parliamentary committee procedures.

26.  In 2005, the (then) Minister for Provincial and Local Government prescribed a National Disaster Management Framework (NDMF) in terms of section 6(1) of the Disaster Management Act 2002. The NDMF is the legal instrument required by the Act to provide ‘a coherent, transparent and inclusive policy on disaster management appropriate for the Republic as a whole’.³⁴ In 2010, under section 3 read with sections 58 and 59 of the Disaster Management Act 2015, the Minister for Cooperative Governance and Traditional Affairs proclaimed Disaster Management Volunteer Regulations (DMVR), which provide for the establishment of units of volunteers to participate in disaster management.

27.  For the duration of a national state of disaster, section 27 of the Disaster Management Act 2002 empowers the relevant Minister, after consultations with other implicated members of Cabinet, to make regulations, issue directions, or authorize the issuing of directions concerning:

These powers may be exercised only for the duration of the state of disaster and only to the extent that this is necessary for the purpose of (a) assisting and protecting the public; (b) providing relief to the public; (c) protecting property; (d) preventing or combating disruption: or (e) dealing with the destructive and other effects of the disaster.³⁶ Regulations promulgated in terms of the Disaster Management Act 2002 remain in force until repealed, or until the state of disaster lapses.

28.  Such regulations proclaimed in terms of the Disaster Management Act 2002 have been the pre-eminent governance instruments during the Covid-19 pandemic. Overall, the executive issued seven sets of core ‘lockdown’-related regulations, as well as over three hundred sets of related regulations.³⁷ In addition, there have been a large number of sector-specific directives—including, for instance, measures aimed at curbing the spread and mitigating the impact of Covid-19 in public transport, air services, correctional services, sports, arts and culture, tourism facilities, schools, ports, and harbours—as well as an array of disaster management guidelines on how to implement and comply with regulations in various contexts (such as schools and workplaces), how to apply for relief measures, and how to navigate the relaxation of ‘lockdown’ measures in various sectors. All directives and guidelines are listed and accessible, alongside all core and related Covid-19 regulations, on a designated government website.³⁸

29.  All law and all executive action is subject to judicial review for constitutional compliance and adherence to the legality principle (including rationality). As discussed in Part IV.A.1 below, a number of the promulgated Covid-19 regulations have been challenged before the courts, for allegedly infringing rights in the Bill for Rights and for allegedly failing the requirement of rationality.

30.  The National Disaster Management Centre (NDMC) exercises advisory and consultative powers under sections 15 and 22 of the Disaster Management Act 2002. It can publish guidelines and recommendations in the national Government Gazette or a provincial gazette.

31.  As mentioned above, various state departments have published guidelines on the implementation of Covid-19 related executive regulations. Examples include the State of Disaster: Public Service guidelines for containment/management of Coronavirus Covid-19,³⁹ and the Guidelines for Mandatory Code of Practice on Mitigation and Management of Coronavirus Covid-19 Outbreak.⁴⁰ These guidelines are advisory in nature and lack the force of law, though their implementation constitutes administrative action and may therefore be subjected to judicial review.

32.  Institutionally, the main controversy has been the creation, at the President’s behest, of a National Coronavirus Command Council (NCCC), consisting of the President alongside initially a selection of, and later the entire, Cabinet. The NCCC was intended as a consultative and coordinating forum to ensure effective communication over the national response to Covid-19. However, it seemed to duplicate the functions intended for the NDMC in terms of the Disaster Management Act 2002. There was some public discord over the NCCC’s legality, legitimacy, and accountability,⁴¹ and its constitutionality was challenged before the Western Cape High Court. In Esau and ors v Minister of Cooperative Government and Traditional Affairs and ors,⁴² it was argued that the NCCC’s establishment was an attempt to circumvent executive accountability, fell outside of the President’s constitutional powers and was ultra vires the Disaster Management Act. The Court dismissed the challenge, upholding the President’s argument that Cabinet could arrange itself as it deemed fit, that the NCCC was a legitimate committee of Cabinet, and that it could constitutionally be held accountable as such.

33.  Parliament has a constitutional obligation to maintain oversight of the executive.⁴³ Cabinet members ‘are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions’⁴⁴ and must ‘provide Parliament with full and regular reports concerning matters under their control’.⁴⁵ Parliament and its committees typically exercise oversight over the executive by exercising powers in terms of its rules, such as putting questions to or requiring briefings from the executive. All executive action is further subject to judicial review for constitutional compliance.

34.  In terms of section 101(4) of the 1996 Constitution, national legislation may specify the manner in which and extent to which executive instruments (such as regulations or directives) must be tabled in and approved by Parliament. But no law has been passed providing for blanket pre-promulgation legislative scrutiny of executive law-making, other than in the course of ordinary oversight in terms of the procedures of various parliamentary committees. In terms of section 59(4) of the Disaster Management Act 2002, regulations made by the Minister in terms of the Act must be referred to the National Council of Provinces, whose approval would be required in order for the regulation to prevail over conflicting provincial legislation under section 146(6) of the 1996 Constitution.

35.  Over and above ‘ordinary’, constitutionally mandated, oversight, the Disaster Management Act 2002 requires of the Minister of Cooperative Governance and Traditional Affairs, who is responsible for disaster management, to submit annual reports produced by the NDMC to Parliament for scrutiny.⁴⁶ Provincial Disaster Management Centres must similarly report, via the responsible provincial executive leader, to Provincial legislatures.⁴⁷

36.  On 16 April 2020, the Presiding Officer of Parliament issued a statement emphasizing that ‘the role of Parliament remains indispensable during this period of national lockdown and the extended period of social distancing, which is expected to continue for months’.⁴⁸ A press release dated 5 April 2020 further affirmed Parliament’s responsibility to ‘oversee the delivery of services needed to relieve the burden of the Covid-19 pandemic on the public’ and emphasized that MPs retained their oversight authority and responsibilities during the state of national disaster. The statement proceeded to elaborate that, beyond parliamentary committee meetings, oversight functions would be fulfilled by individual MPs ‘carrying out constituency work in various communities and holding the Executive accountable for implementing measures designed to overcome the state of disaster’.⁴⁹

37.  The commencement of the state of national disaster coincided with the scheduled constituency programme of Parliament and its Easter recess. Parliamentary sittings were suspended from 23 March until 13 April 2020. In terms of the prevailing Disaster Management Regulations,⁵⁰ MPs were listed as falling within the category of essential services and were required to perform constituency work—including being available to the public and solving problems in communities—during this time.⁵¹

38.  Parliament resumed all business, including sittings of both houses and associated activities, such as passing legislation and conducting oversight over the executive, on 13 April 2020. However, it initially prioritized meetings for committees whose scope of oversight relates to government departments driving Covid-19 response measures. These included the committees on defence, social development and social services, and co-operative governance, and traditional affairs. All scheduled leave for MPs between 28 April and 4 May was cancelled.⁵²

39.  While initially operating only virtually, meetings of various parliamentary committees and fora—such as meetings of the Presiding Officers; forums of party chief whips in the National Assembly, National Council of Provinces, and provincial legislatures; and the Speakers’ Forum—subsequently took place as hybrid proceedings that allowed a limited number of members to attend in person, while the remainder attended via video link and could vote remotely. In their first meetings, these fora considered an amended framework for administering the business of oversight committees and plenary sittings, as well as an adjusted programme for the period ahead. ⁵³

40.  The passing of legislation has not been suspended during the lockdown. The remote voting process during virtual plenary sessions entailed that party members communicated their intended votes on proposed legislation to their chief whips, who would in turn communicate the total caucus vote to the Speaker. The effect was that party caucuses mostly voted en bloc, though individual MPs could indicate their express intention to abstain or record a vote contrary to the party position. Bills passed during the lockdown period included legislation aimed at addressing the economic fallout of the pandemic, namely the Disaster Management Tax Relief Administration Act⁵⁴ and the Disaster Management Tax Relief Act.⁵⁵

41.  Unrelated to the pandemic, the parliamentary complex was gutted by fire on 2 January 2022. This stalled Parliament’s plans to resume in-person sittings and meetings after the termination of the state of disaster, and its committees and plenary sittings continue to be held virtually, or in a hybrid manner, from a temporary venue in the Cape Town City Hall.

42.  After consultation with the Chief Justice and in terms of section 27(2) of the Disaster Management Act 2015, the Minister of Justice and Correctional Services issued directions to address, prevent, and combat the spread of Covid-19 in all courts, court precincts, and justice service points.⁵⁶ Additionally, the Chief Justice issued various directives on the management of courts during the various stages of South Africa’s phased lockdown.⁵⁷

43.  The initial directives allowed the hearing of only urgent and essential matters and restricted access to court to ‘persons with a material interest in a case’, defined as litigants, accused, witnesses, persons who may be needed to provide support to them, family members, and members of the media. Judicial officers could insist that the number of persons in a room be reduced to comply with safety measures and social distancing requirements.⁵⁸

44.  The directions issued by the Minister of Justice further stipulated that ‘audio-visual remand centres in Correctional Centres linked to a court must be used for purposes of the postponement of cases where accused persons are in custody’.⁵⁹

45.  In terms of the Chief Justice’s Directions, all criminal trials were postponed to dates after the initial ‘hard’ lockdown, unless the interests of justice dictated otherwise or where special arrangements had been made with the judicial officers involved in the matter. Similarly, civil cases that were identified as not urgent or concerning essential services could not be placed on the court roll for the duration of the initial lockdown period. Unopposed matters or appeals that had already been placed on the court roll prior to the lockdown and that were capable of being decided without oral hearing could be decided on the papers, alternatively they could be heard by teleconference or video-conference, or any other electronic mode, which dispenses with the necessity to be physically present in a courtroom.⁶⁰ Heads of courts were awarded a discretion to authorize virtual hearings of civil and criminal matters as from 2 May 2020, subject to pre-existing safeguards pertaining to virtual trials or trials in absentia, contained in sections 159-159A of the Criminal Procedure Act (51 of 1977).⁶¹ There have been reports expressing concern that access to justice may be compromised by teething problems in conducting hearings via video conferencing, especially given uneven access to technological resources in remote areas.⁶²

46.  Starting in Gauteng Province, courts returned to in-person hearings as default from 18 July 2022, with virtual hearings remaining permissible in exceptional circumstances.⁶³

47.  The Independent Electoral Commission (IEC) is constitutionally charged with managing the elections of national, provincial, and municipal legislative bodies in South Africa.⁶⁴ The IEC lodged an urgent application with the Electoral Court requesting the postponement of municipal by-elections and associated activities such as voter registration that were originally scheduled for March, April, and May 2020.⁶⁵ The Electoral Commission Act stipulates that the Electoral Court may, on an urgent basis, review any decision of the IEC relating to an electoral matter and the review shall be disposed of as expeditiously as possible.⁶⁶ On 19 March 2020, the Electoral court granted the urgent application and postponed 96 by-elections. The court additionally ruled that the by-elections could be held beyond the 90-day legislated period for the filling of councillor vacancies but not beyond 120 days from the date of the order.⁶⁷ However, the prolonged state of national disaster required the court to further postpone the by-elections twice⁶⁸ and to revise the electoral timetable for the by-elections accordingly.⁶⁹ After consultations with the Minister of Cooperative Governance and Traditional Affairs and a special National Party Liaison Committee representing political parties, the IEC resolved ‘to clear the backlog of all outstanding by-elections on 11 November 2020’.⁷⁰ On that date, by-elections took place in 96 wards in 56 municipalities countrywide.⁷¹

48.  Local government elections are proclaimed by the Minister of Cooperative Governance and Traditional Affairs.⁷² While initially confident that local government elections scheduled for 27 October 2021 would go ahead as planned,⁷³ on 20 May 2021 the IEC appointed retired Constitutional Court judge, Justice Dikgang Moseneke, to lead a commission of inquiry into the feasibility of holding free and fair local government elections.⁷⁴ Moseneke’s report, which concluded that there was a possibility that the October elections might not be free, fair, and safe, and accordingly recommended that the elections be postponed until February 2022, was published on 20 July 2021.⁷⁵

49.  Following the Moseneke report, on 4 August 2021 the IEC launched an urgent application before the Constitutional Court, requesting the postponement of the 2021 local government elections on the basis that it would not be feasible to hold free and fair elections in the midst of the pandemic. The IEC asked for an order allowing it to postpone the elections until February 2022, alternatively to declaring its failure to hold the elections as scheduled unconstitutional but allowing it until 28 February 2022 to correct the constitutional defect. The application was dismissed by the Constitutional Court on 3 September 2021,⁷⁶ with the Court ordering that the elections had to take place between 27 October and 1 November 2021. In compliance with this order, the Minister of Cooperative Governance and Traditional Affairs proclaimed the election date to be 1 November 2021, and elections went ahead accordingly.

50.  The Minister of Health may, after consultation with the National Health Council, establish such number of advisory and technical committees as may be necessary to achieve the objects of the National Health Act (61 of 2003).⁷⁷

51.  On 25 March 2020, the Minister of Health formally established the Ministerial Advisory Committee on Coronavirus Disease 2019 (MAC) and its membership list was officially published by the Department of Health on 21 April 2020.⁷⁸ However, it is unclear whether prescribed consultation processes were followed or on what basis members of the MAC were nominated or selected. The terms of reference, reporting lines, and operating procedures of the MAC have also not been publicly disclosed.⁷⁹

52.  It is nowhere expressly required that the government follow the advice of the MAC. Furthermore, the Minister of Health has the discretion not to publish the advice received from the MAC. Concerns have accordingly been expressed over the de facto independence of the MAC and over the extent to which its advice is heeded.⁸⁰

53.  As of December 2022, the MAC has produced over one hundred advisory opinions on COVID-19⁸¹ and vaccinations.⁸²

54.  The 1996 Constitution enshrines ‘freedom of the press and other media’ as part of the right to freedom of expression.⁸³

55.  To date, there have been no instances of constraining or obstructing any reporting on Covid-19 by the media.

56.  Under regulation 11(5) of the Disaster Management Act: Regulations relating to COVID-19, it is prohibited to publish any statement through any medium with the intention to deceive about Covid-19, any person’s Covid-19 infection status, or government measures to address the pandemic. The penalty is a fine or imprisonment for six months, or both. While aimed at curbing the spread of ‘fake news’ about Covid-19, concerns have been raised that this criminalization of disinformation about the pandemic amounts to censorship of the press.⁸⁴ There have been press reports of arrests and court appearances under this regulation,⁸⁵ but there is currently no data on convictions.

57.  No special independent reviewer of Covid-19 legislation or policy has been appointed. On 4 April 2020, it was announced that former Constitutional Court judge Catherine O’Regan had been appointed as ‘Covid-19 Designated Judge’ in terms of amended regulations,⁸⁶ to oversee and ensure protection of the right to privacy in the course of contact tracing and associated tracking procedures.⁸⁷

58.  On 6 August 2020, the President appointed an inter-ministerial committee to focus on allegations of corruption associated with the response to the pandemic, in particular in relation to irregularities pertaining to procurement of personal protective equipment (PPE). The committee is supported by a coordination centre consisting of senior representatives of various law enforcement agencies.⁸⁸

59.  The Public Protector is established under section 182 of the 1996 Constitution to investigate, report, and take appropriate remedial action on any improper conduct in the public administration in any sphere of government.⁸⁹ In October 2020, the office of the Public Protector launched an investigation into allegations of irregularities in tenders awarded for provision of PPE in facilities for the treatment of Covid-19.⁹⁰

60.  The Auditor-General is established under section 188 of the 1996 Constitution, to audit and report on the accounts, financial statements, and financial management of national, provincial, and local governments as well certain other public entities. The Auditor-General published a number of special reports on the financial management of the government’s Covid-19 initiatives, which highlighted several weaknesses, including corruption in emergency procurement.⁹¹

61.  The South African Human Rights Commission (SAHRC) is established under section 184 of the 1996 Constitution. Its functions include to ‘monitor and assess the observance of human rights in the Republic’⁹² and it is empowered to ‘investigate and report on the observance of human rights’ and ‘to take steps to secure appropriate redress where human rights have been violated’.⁹³ In response to complaints against the City of Cape Town, pertaining to the conditions in a relocation camp established by the municipal government for housing homeless people during the initial ‘Level 5’ lockdown (see Part IV.A below), the SAHRC commissioned a group of experts to investigate and report on conditions at the facility. The independent experts’ report found that conditions at the relocation camp fell short of several human rights standards. In particular, it bemoaned the camp’s inadequate Covid-19 prevention measures and the inadequacy of health care services provided to residents.⁹⁴ Following the report, the camp was closed in early May 2020.⁹⁵

62.  Between 26 March 2020 and 5 April 2022, South Africa employed a risk-adjusted approach—the ‘alert system’—whereby the reach of restrictive public health measures was gradated according to the spread of Covid-19 and the ‘readiness’ of the health system.⁹⁶ The system employed five alert levels, with Alert Level 5 representing a high Covid-19 spread and low health system readiness (high risk), and Level 1 representing a low Covid-19 spread with high health system readiness (low risk).⁹⁷ Alert levels were determined by the Minister of Health, on advice of the MAC. However, the government has acknowledged that other factors, such as the economic and social impact of continued restrictions, also impacted on the determination of alert levels.⁹⁸

63.  The alert system makes provision for different alert levels to operate nationally, provincially, and locally.⁹⁹ In practice, alert levels have thus far all applied nationally, and thus uniformly throughout the country. However, on 3 December 2020, the government introduced a ‘hot spot’ designation which formally falls outside of the alert levels and which temporarily introduced more comprehensive restrictions in specific areas with a ‘second wave’ resurgence of Covid-19 infections.¹⁰⁰ The nature and extent of most public health interventions, including restrictions on travel and mobility of citizens, mandatory closure of premises, and prescriptions in terms of protective equipment, have largely been determined by the prevailing alert level or hot spot designation. Certain measures were however introduced or relaxed on an ad hoc basis. Except where stated otherwise, all regulations discussed in this section were introduced at national level in terms of the Disaster Management Act 2002 and had full force of law.

64.  The different dates of operation for each initial alert level have been as follows:

65.  Given the subsequent resurgence of Covid-19 cases (the so-called Covid-19 waves) from time to time, the country thereafter reverted to different alert levels based on ‘adjusted alert level’ regulations, which typically softened restrictions introduced during the initial alert level or introduced more context and geographic specific measures. The timeline for the adjusted alert levels are as follows:

66.  On 5 April 2022, the state of disaster was terminated, and transitional regulations were put in place, which lapsed automatically on 5 May 2022.¹⁰¹ Certain public health measures, such as mandatory mask wearing, were retained under an amendment to the Regulations Relating to the Surveillance and Control of Notifiable Medical Conditions promulgated under the National Health Act (61 of 2003). These remained in effect until 22 June 2022.

67.  Under what was popularly referred to as a ‘hard lockdown’, from 26 March to 31 April 2020, all persons throughout the country were fully confined to their places of residence, except for providing or obtaining essential services or goods, collecting a social grant, seeking emergency medical treatment, or obtaining chronic medication.¹⁰² An extensive list of essential goods and services was published. Essential goods were roughly: human and animal food, cleaning and hygiene products, fuel, medical goods, and ‘basic goods’, which is not defined in more detail but includes airtime and electricity as listed examples. Essential services were entities involved in providing essential goods, emergency services such as fire services, law enforcement, media, court officers, ombudsman organizations, necessary transport, and critical maintenance services.¹⁰³ Entities which provided essential goods or services were to identify essential workers based on, amongst other criteria, the complexity and size of the operation.¹⁰⁴ Essential workers were expected to apply for permits from their employers and to be able to produce such for inspection at any time. Only limited public commuter transport services were available, to enable essential travel for permitted activities.¹⁰⁵

68.  On 1 May 2020, restrictions were slightly relaxed. Access to, and the correlating ability to provide, goods and services were reintroduced in certain sectors, including construction, textile, manufacturing, and mining. The revised regulations also allowed for the reintroduction of, for example, live in and care staff, home food deliveries, limited car sales, and the sale of seasonal products such as winter clothing.¹⁰⁶ Refineries and similar facilities for energy and fuel supply were opened at full capacity.¹⁰⁷ Persons were allowed to walk, run, or cycle within kilometres of their place of residence from 06:00 to 09:00 daily. At the same time a national curfew was introduced between the hours of 20:00 and 05:00.¹⁰⁸

69.  On 1 June 2020, restrictions on movement were relaxed significantly. Times for permitted exercise were extended to between 06:00 and 18:00 daily, with no specific geographic restriction.¹⁰⁹ The economy reopened and persons were allowed to leave their home to access or provide any service unless it was expressly excluded, on the understanding that everyone who could work from home had to continue to do so.¹¹⁰ Restricted services were mostly in the tourist or hospitality industries, though limited travel for leisure purposes was again permitted from 25 June 2020.¹¹¹

70.  The national curfew was reduced to between the hours of 22:00 and 04:00 from 31 July 2020,¹¹² and again on 21 September 2020 to between the hours of midnight and 04:00.¹¹³

71.  In areas designated as ‘hot spots’ after 3 December 2020, a curfew operated from 22:00 to 04:00.¹¹⁴ However, when reverting to adjusted Level 3 on 29 December 2020 to 1 March 2021, curfew was adjusted to 21:00 until 06:00 (and until 05:00 from 11 January), ¹¹⁵ and was readjusted at various adjusted alert levels until reverting to the times of 00:00 to 04:00 on 1 October 2021.¹¹⁶ As of 28 June, persons were allowed to leave their homes during curfew if they could prove that they were travelling to or from an airport.¹¹⁷

72.  On 30 December 2021, the national curfew was lifted and was not reinstated.¹¹⁸

73.  The various movement restrictions imposed by the regulations have typically been upheld and enforced by the courts, including the Constitutional Court.¹¹⁹ However, a constitutional challenge to some of the restrictions associated with Alert Levels 3 and 4 was initially upheld in De Beer and ors v Minister of Cooperative Governance and Traditional Affairs, where the Pretoria High Court found that an unspecified number of restrictions were irrational and accordingly fell foul of the constitutional requirements for the reasonable and justifiable limitation of rights under section 36 of the 1996 Constitution. The Minister of Cooperative Governance and Traditional Affairs was ordered to reconsider, amend, and republish the regulations.¹²⁰ The judgment was eventually overturned by the Supreme Court of Appeal,¹²¹ but its effects were in any event soon rendered moot when restrictions were relaxed in accordance with a reduction in alert level, to Level 2. A similar constitutional challenge failed in the subsequent Esau and ors v Minister of Cooperative Government and Traditional Affairs and ors.¹²²

74.  The national borders were closed on 26 March 2020, except for transportation of fuel and essential goods. Internally, all movement between provinces, except where required to attend funerals, was prohibited.¹²³

75.  From 1 May 2020, movement between provinces and local districts was permitted where crossing a provincial border was part of a work commute or was required to access educational services. At the same time, a one-off opportunity to travel between provinces was awarded to persons who were away from their place of residence or work at the initial enactment of the travel restrictions.¹²⁴ The movement of children between co-holders of parental responsibilities and rights or caregivers was permitted, and children could be moved over provincial and local borders were a permit for such purposes obtained from a magistrate.¹²⁵

76.  From 1 June 2020, inter-provincial and national borders were opened to allow daily commuters who attend school in South Africa.¹²⁶

77.  Restrictions on movement between provinces were removed on 18 August 2020.¹²⁷ Temporary restrictions were reintroduced on a case-by-case basis between certain designated provincial hotspots to exclude leisure travel (eg only essential travel to and from Gauteng was allowed during adjusted alert Level 4).¹²⁸

78.  As of 21 September 2020, the national borders were partially reopened with certain land borders remaining closed. International travel from countries deemed to have a low rate of Covid-19 infection and transmission would be permitted subject to travellers being able to produce a negative Covid-19 test or quarantining at their own cost. ¹²⁹ As of 29 December 2020, travellers who fail to produce a negative Covid-19 test, were required to do an antigen test at their own cost and, where positive, were required to self-isolate for 10 days at their own cost.¹³⁰ These arrangements were retained under the Regulations Relating to the Surveillance and Control of Notifiable Medical Conditions, which remained in effect until 22 June 2022.

79.  From 26 March 2020, all public gatherings were prohibited except for funerals, where a maximum of 50 family members or persons with a close affiliation to the deceased could attend. Night vigils were strictly prohibited. ¹³¹

80.  From 1 June 2020, religious gatherings at places of worship were re-allowed, subject to a limitation of a maximum of 50 people per gathering.¹³²

81.  From 18 August 2020, the limited opening of entertainment venues, including bars and taverns, sporting venues and gyms, beaches and public parks, and wedding functions was allowed, subject to a limitation of 50 persons per gathering. Personal visits between family and friends at places of residence were allowed for the first time, subject to a limit of 10 persons.¹³³

82.  As of 18 September, the maximum number of people allowed to gather was increased: up to 100 people could now attend a funeral; at faith-based institutions, political events, traditional council meetings, and social meetings up to 250 people could congregate indoors and up to 500 people outdoors, provided that no more than 50% of a venue’s capacity may be used and that a social distancing requirement of 1.5 metres is observed.¹³⁴ In areas designated as hot spots, up to a 100 people can attend a social event or faith-based gathering indoors, and up to 250 people can attend the same gathering if hosted outdoors.¹³⁵

83.  During adjusted alert Level 3, attendance of funerals was again limited to a maximum of 50 persons,¹³⁶ and at designated hotspots faith-based, political, and certain recreational gatherings were prohibited for two weeks as of 29 December 2020.¹³⁷ During adjusted alert Level 4, all social gatherings except for funerals were prohibited.¹³⁸ Gatherings were permitted again from adjusted Level 3 with different maximum attendees based on whether the gathering took place indoors or outdoors. From 1 October 2021, gatherings of up to 750 people (indoors) and 2000 people (outdoors) were allowed, as long as no more than 50% of the venue capacity was used.¹³⁹ On 22 March 2022, the maximum number of attendees for indoor gatherings was revised upwards to 1000 people (retaining a 50% cap).¹⁴⁰ These arrangements were retained under the Regulations Relating to the Surveillance and Control of Notifiable Medical Conditions, which remained in effect until 22 June 2022.

84.  From 26 March to 31 April 2020, all business and other premises, except for those that manufactured or supplied essential goods or services, were ordered closed.¹⁴¹ Limited goods and services were reintroduced on 1 May, and those premises and facilities were allowed to reopen.¹⁴² All premises and facilities reopened on 17 August, except certain specific exceptions such as gyms, bazaars, night clubs, lodging, beaches, and parks which remained closed.¹⁴³ On 21 September, all of these premises except for night clubs were allowed to reopen.¹⁴⁴ The prohibition of gatherings at night clubs was lifted at the end of the state of disaster on 5 April 2022.¹⁴⁵

85.  The sale of tobacco, tobacco products, e-cigarettes, and related products was prohibited from Alert Levels 5–3 (27 March to 17 August 2020). The government rationale for the tobacco ban was to reduce the behavioural risks connected to tobacco use (sharing tobacco products) and to reduce possible increased smoking-related risks of Covid-19 transmission and of developing more severe symptoms.¹⁴⁶ The constitutionality of the tobacco ban was unsuccessfully challenged before the Gauteng High Court by a tobacco association.¹⁴⁷ An appeal against the judgment ended in a settlement agreement shortly prior to the lifting of the restriction in August 2020.¹⁴⁸ However, a second challenge to the constitutionality of the tobacco ban was lodged in a different division of the High Court (Western Cape), where the tobacco ban was declared unconstitutional.¹⁴⁹ The decision was upheld on appeal by the Supreme Court of Appeal, and the Courts determined that the tobacco ban was not sufficiently supported by scientific evidence and that the harms of the ban outweighed the benefits. The judgment focused on the right to individual privacy and the right to freedom of trade of bodies within the tobacco supply chain.¹⁵⁰

86.  The limitation on the sale, dispensing, and transportation of liquor fluctuated throughout from complete prohibition (adjusted and initial Levels 4–5, and for a short intermediate period during Level 3 and adjusted Level 3) to limited reinstatement of the sale and purchase of liquor products (Level 3 and below). The so-called ‘alcohol ban’ was motivated by the need to reduce alcohol-related trauma cases to increase hospital capacity.¹⁵¹

87.  All schools were initially closed after the declaration of the state of disaster (18 March 2020).¹⁵² A phased re-opening of schools was announced by the Minister of Basic Education through published directions (23 July 2020).¹⁵³ Due to an increase in Covid-19 cases, public schools were briefly closed again from 27 July to 24 August, with exceptions for learners at exit-level grades (grades 7 and 12).¹⁵⁴ This second closure did not apply to independent (private) schools.¹⁵⁵ Upon reopening, only learners and officials were permitted to enter schools after being screened for Covid-19 at the entrance.¹⁵⁶ Learners and officials had to wear masks and officials were to receive two masks from the provincial Department of Education.¹⁵⁷ Schools were only allowed to operate at 50% capacity with an initial distance of 1.5 metres between persons.¹⁵⁸ The distance was later reduced to 1 metre.¹⁵⁹ Before opening, schools were to be inspected to ensure adequate health, safety, and distancing measures are put in place.¹⁶⁰ Before the final lapse of regulations pertaining to schools on 5 April 2022, one final amendment to regulations saw social distancing requirements being removed on 1 February 2022.¹⁶¹

88.  As gatherings of persons and the opening of business premises and schools were gradually allowed during the phased relaxation of alert levels explained above, relevant regulations required a mandatory physical distance of 1.5 meters between persons to be observed at all times.¹⁶² From 13 September 2021, the mandatory physical distance in schools, early childhood development centres, and places of higher education was reduced to 1 metre,¹⁶³ and removed on 1 February 2022.¹⁶⁴

89.  Where certain economic sectors reopened, businesses and other entities were required to develop adequate health protocols and plans to phase in the return of employees. All retailers were also to place controls to ensure that customers keep a distance of at least one square meter from each other, even in queues to access premises. Businesses were to minimise the need for employees to be physically present at the workplace.¹⁶⁵ Businesses were to designate Covid-19 compliance officers to oversee compliance with the regulations.¹⁶⁶

90.  Large businesses were specifically tasked with taking steps such as rotating shifts, staggering working hours, and enabling remote working to reduce the number of people on their premises. Special measures were to be implemented for persons over 60 living with co-morbidities to limit their exposure at work or to enable remote working.¹⁶⁷

91.  These measures all lapsed upon the termination of the state of disaster on 5 April 2022.¹⁶⁸

92.  Although previously encouraged and widely practiced by the public, on 1 May 2020 regulations were issued making it mandatory to wear a face mask, or an appropriate alternative item, in all public spaces.¹⁶⁹ Children under 6 years were exempt from 11 January 2021¹⁷⁰ to 16 June 2021,¹⁷¹ until such exemption was removed from the regulations for adjusted Level 3, and then reintroduced on 13 September 2021.¹⁷²

93.  On 12 July 2020, regulations specifying how masks or face coverings are to be worn were published.¹⁷³ The wearing of a mask or appropriate alternative item in public spaces was not required where a person was engaging in vigorous exercise and maintained a distance of at least three metres from others (regulation 5(2A)). Employers were obliged to provide masks to employees, while principals of schools and managers of early childhood development centres were charged with taking reasonable steps to procure masks for learners under their care (regulation 5(3)). Learners without masks were isolated and their parent, caregiver, or guardian was contacted.

94.  During Adjusted Alert Level 3, financial institutions were mandated to make hand sanitiser available at all automated teller machines.¹⁷⁴

95.  At the lapse of the state of disaster, the mandatory mask mandate was retained under the Regulations Relating to the Surveillance and Control of Notifiable Medical Conditions, which remained in effect until 22 June 2022.

96.  The first disaster management regulations published on 18 March 2020—before the use of alert levels—prescribed that no person who has been confirmed as having contracted Covid-19 or having been in contact with a person who has contracted Covid-19 can refuse a medical exam, admission to a health facility, quarantine, or isolation site, or treatment or prophylaxis.¹⁷⁵ From 1 February 2022, the requirement for asymptomatic persons to isolate was ended, and quarantines were no longer employed.¹⁷⁶

97.  Regulation 4 specifies that where a person refuses, an enforcement officer—police, military, or peace officer—can apply to a local magistrate’s court to judicially compel such a person. The enforcement officer has 48 hours to approach the court and obtain the necessary order, during which a person can be forcibly placed in isolation or quarantine. The magistrate may judicially compel a person if it appears from a statement under oath or affirmation from the enforcement officer that the person is confirmed as having contracted Covid-19, confirmed as having been in contact with someone who tested positive for Covid-19, or reasonable grounds exist to believe a person has been in contact with a person who has contracted Covid-19. The State was to make quarantine and isolation facilities available to be used ‘when the need arises’ (regulation 5). There has been some controversy around the human rights impact of these regulations and their potential deterrent effect on testing.¹⁷⁷ Following a rationality-based legal challenge against indiscriminate forced isolation in terms of these regulations, a High Court decision clarified that compelled isolation or quarantine in a state facility would be limited to instances where persons refuse or are unable to self-quarantine or self-isolate.¹⁷⁸

98.  Upon the lapsing of the state of disaster, standard regulations relating to quarantine and isolation for notifiable diseases in South Africa apply.¹⁷⁹

99.  The regulations and judicial processes discussed and referenced in relation to forced isolation and quarantine under Part IV.A.7 above, also encompass submission to medical exams, testing, treatment, or prophylaxis.¹⁸⁰

100.  Thus far, there has been no definitive policy statement or regulation pertaining to the possibility of mandatory vaccination. South Africa participated in COVAX, a multi-country platform supporting the research, development, and manufacturing of a wide range of vaccine candidates, and facilitating negotiations over their pricing,¹⁸¹on 3 December 2020.¹⁸²

101.  On 2 October 2020, South Africa and India petitioned the World Trade Organization’s (WTO) Council for Trade-Related Aspects of Intellectual Property Rights to recommend the waiver of certain sections of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, which contain prohibitive intellectual property protections which counteract Covid-19 treatment and prevention.¹⁸³ The petition has been opposed by several countries, including Canada, Germany, Japan, Norway, Switzerland, and the United Kingdom.¹⁸⁴ To date, the petition has remained unsuccessful.¹⁸⁵

102.  On 17 February 2021, the first phase of a vaccine programme to vaccinate up to 500,000 health workers in South Africa with the Johnson & Johnson vaccine (called the ‘Sisonke Study’) was launched.¹⁸⁶ From 17 May 2021, persons over 60 years of age and health workers were eligible for vaccination,¹⁸⁷ followed by teaching staff and persons over 50 (5 July),¹⁸⁸ persons over 35,¹⁸⁹ frontline social workers and media personnel (15–30 July),¹⁹⁰ persons over 18 (20 August), and finally children over 12 (20 October 2021).¹⁹¹

103.  As of 7 December 2021, the South African Health Products Regulatory Authority has approved five vaccines for local use (not necessarily including boosters): (1) The Serum Institute of India: Covovax (the Novavax formulation); (2) Covishield (Oxford/AstraZeneca formulation); (3) Pfizer/BioNTech Comirnaty; (4) Janssen (Johnson & Johnson) JCovden; and (5) Sinovac CoronaVac.¹⁹² Adults between the ages of 18 to 49 years were eligible for three doses of the vaccine and adults over 50 were eligible for four. Additional booster doses are to be considered in 2023.¹⁹³ These figures exclude persons enrolled in various clinical trials active in South Africa.

104.  As at 9 January 2023, at least 22 million South Africans have received at least one dose of a Covid-19 vaccine, and more than 19 million people are deemed to have been fully vaccinated.¹⁹⁴

105.  Contact tracing was initially conducted manually by healthcare workers. A Covid-19 patient or their caregiver would be interviewed in person or by telephone. Depending on the patient’s movements, lists of potential contacts may be obtained from managers of buildings, transport providers, etc to compile an extended list of contacts. Persons identified as having been in close contact would immediately be quarantined and monitored daily. Methods of monitoring included healthcare workers conducting home visits, telephone interviews, or relying on self-reporting from the identified person. ¹⁹⁵

106.  To complement manual contact tracing, on 2 April 2020 digital contact tracing was introduced and a national Covid-19 tracing database was established.¹⁹⁶ Private and public laboratories, places of accommodation, and electronic communications service providers generate data for the database.¹⁹⁷ Laboratories are to communicate test results and details of the person tested directly to the database without that person’s consent. Electronic communication service providers can be compelled to provide information regarding the location or movements of a person known or reasonably suspected to have contracted Covid-19 or a person known or reasonably suspected to have been in contact with a possible Covid-19 case without their prior knowledge or consent.¹⁹⁸ After six weeks, all information must either be de-identified or destroyed.¹⁹⁹ The overall contact tracing regulations are subject to a measure of judicial oversight to ensure their efficacy as well as protection of the right to privacy.²⁰⁰

107.  Several other government initiatives have been launched, including developing smartphone contact tracing applications or establishing communication and reporting mechanisms via social media.²⁰¹

108.  On 21 February 2022, the National Director General of Health communicated to health workers and facilities that active contract tracing should be stopped, except in certain vulnerable settings, and that passive contact tracing—asking infected persons to self-disclose to contacts—should be adopted.²⁰²

109.  In visits to persons who are imprisoned, in health establishments, or in the social care of the state—eg persons in frail care or old age homes—were initially entirely prohibited, and were only permitted under very limited circumstances from 1 May 2020.²⁰³ Restrictions on personal visits were first lifted on 18 August 2020,²⁰⁴ but it was not until 11 September 2020 that a ban on visits to state-run old age homes and frail care was lifted. Visitors to state-run facilities must complete a pre-screening call in order to check symptoms and ascertain whether the visitor has had any known previous exposure to Covid-19.²⁰⁵ As of 1 March 2021, members of the Independent Electoral Commission were allowed to visit these facilities to facilitate voter registration and special voting mechanisms.²⁰⁶

110.  These measures lapsed upon the termination of the state of disaster on 5 April 2022.²⁰⁷

111.  In terms of the Disaster Management Regulations, enforcement of lockdown regulations is allocated to enforcement officers, which includes members of the SAPS, the SANDF, or peace officers more generally.²⁰⁸ Peace officers include justice and correctional officials.²⁰⁹ There is no specified role for public health officials.

112.  Enforcement officers are tasked with a range of duties: dispersing unauthorized gatherings, arresting or detaining persons at a gathering who refuses to disperse, and enforcing and applying for warrants for mandatory medical examinations, prophylaxis, treatment, isolation, and quarantine.²¹⁰

113.  Persons who violate the restrictions placed on movement, open a place or premises ordered to be closed to the public, or sell non-sanctioned goods (as per the alert level) commits a criminal offence and can be fined, imprisoned up to 6 months, or both.²¹¹ Different court districts published separate schedules of fines but values generally range from R500–R5000.²¹² Between 1 April and 30 June 2020, 298,252 people were arrested for violating the Disaster Management Regulations. Of these, 181 579 were released on warning to appear before a court.²¹³ Violations of the Disaster Management Regulations were not separately reported for the period of July to September 2020.²¹⁴

114.  While the Disaster Management Act 2002 and accompanying regulatory framework do envisage the possibility of different enforcement regimes at national, provincial, and local levels, the entire Covid-19 response has been driven nationally in terms of the national state of disaster. Relevant local government agencies, such as metropolitan police forces, fall within the definition of ‘enforcement officers’ and have accordingly conducted themselves as implementation agents of national regulations and directives.

115.  Criminal sanctions were also introduced where persons intentionally published false information about Covid-19, the infection status of any person, or any government measure.²¹⁵ A person who intentionally exposes another person to Covid-19 may be prosecuted for an offence, including assault, attempted murder, or murder.²¹⁶

116.  The military was initially deployed from 25 March 2020 to 26 June 2020 to assist in enforcing disaster management regulations (section 201(2) of the Constitution).²¹⁷ Several subsequent deployments were authorized by the President and at least 73,000 military personnel have been used for enforcement and support purposes.²¹⁸ Isolated instances of violence perpetrated against citizens by the military gained extensive media coverage and resulted in litigation, following the death of a civilian who had been assaulted in the course of military enforcement of initial lockdown regulations. In Khosa and ors v Minister of Defence and ors the Gauteng High Court issued a declaratory order that the defence force and police force must abide by the Constitution’s Bill of Rights, the provisions of the Disaster Management Act 2015, and international human rights law when enforcing Covid-19-related regulations. It further ordered for disciplinary action to be taken against the relevant officers and for steps to be taken to prevent a recurrence of events.²¹⁹

117.  Upon the lapsing of the state of disaster, sanctions in terms of the Disaster Management Regulations no longer apply, and standard sanctions relating to disease management (mandatory prophylaxis, etc) of notifiable diseases in South Africa apply.²²⁰

118.  A large national study with representative sampling published in June 2020 showed inadequate public knowledge of Covid-19 symptoms but large-scale behaviour change. While mask-wearing was commonly practiced and people reduced travel and attendance of gatherings, social distancing was not commonly practiced.²²¹ A study in three rural and peri-urban sites indicated that 85% of respondents self-reported satisfaction with Covid-19 knowledge in August 2020 and that mask-usage was at over 95%.²²²

119.  However, non-compliance with public health measures has been noted on several occasions, especially in relation to ‘super-spreader’ events.²²³ A series of annual events frequented by high schoolers upon finishing their final school year, where social distancing and mask wearing was not adhered to, caused a significant increase in Covid-19 infections in early December 2020.²²⁴ There have also been media reports about non-compliance with mask wearing mandates on public transport.²²⁵ A qualitative study of perceptions of the Covid-19 pandemic found that public acceptance of public health measures was high at the beginning of the pandemic but declined over the course of the state of disaster, due to misinformation and perceptions around government corruption.²²⁶

120.  South Africans have also been shown to be vaccine hesitant. A study conducted by Kollamparambil et al (2021) showed that only 55% of adult South Africans are fully accepting of the Covid-19 vaccine.²²⁷ There is a correlation between vaccine hesitance and religious belief, perception of lower personal risk to Covid-19, and race.²²⁸ Another survey indicates that vaccine acceptance has increased to an extent, but also shows that young people and white adults are the most hesitant group.²²⁹ The main drivers of vaccine hesitancy seem to be perceptions of vaccine safety and efficacy,²³⁰ as well as physical and practical issues such as a lack of online access to the Covid-19 vaccine registration platform.²³¹

121.  South Africa entered the Covid-19 crisis on the back of a technical recession combined with mounting fiscal stress, growing public sector debt, and a downgrade to ‘junk status’ in March 2020.²³² The economic crisis induced by Covid-19, against the backdrop of weak economic outlook, had a direct effect on the livelihoods of the most vulnerable South Africans. Given this, the South African government was compelled to adopt an array of extraordinary measures to address and mitigate the economic, political, and social consequences of the pandemic.

122.  The South African Government’s Covid-19 economic stimulus package was announced on 21 April 2020²³³ and subsequently presented to a joint sitting of Parliament on 15 October 2020, as South Africa’s Economic Reconstruction and Recovery Plan (‘Recovery Plan’). The overarching objectives of the Recovery Plan are to create jobs primarily through aggressive infrastructure investment and mass employment programmes; to reindustrialise the economy, focusing on growing small businesses; to accelerate economic reforms to unlock investment and growth; to fight crime and corruption; and to improve the capability of the state.²³⁴

123.  The Recovery Plan amounted to approximately USD 26 billion, or 10 per cent of South Africa’s gross domestic product (GDP). As a share of GDP, South Africa’s package represented the largest among emerging markets. Most significantly, a ZAR 502 billion stimulus package was announced by South African President Cyril Ramaphosa on 21 April 2020, of which ZAR 50 billion was allocated to social assistance in the form of direct financial transfers to support the most economically vulnerable households.²³⁵

124.  Approximately 90 per cent of the stimulus package was allocated to additional health support, assistance to municipalities for the provision of basic services, wage protection through the Unemployment Insurance Fund (UIF), further income support through the tax system, financial support for small and informal businesses, and—the largest component—a credit guarantee scheme, which required the private banking system to extend loans to firms in financial distress.²³⁶ The remaining 10 per cent of the stimulus package, equivalent to USD 3.2 billion, was allocated to social assistance, including an expansion of cash transfers or social grants.

125.  A Solidarity Fund (SF) was established on 23 March 2020 as a rapid response vehicle to augment the efforts of government, business, and civil society in responding to the Covid-19 crisis. The SF was mandated to mobilise and coordinate financial and in-kind contributions from all South Africans and members of the international community and to deploy funds raised to ameliorate both the health crisis and the social consequences of Covid-19. In January 2023, the SF announced that it was scaling down and had an appointed a firm of auditors to administer its remaining operations as a ‘low activity scaled down fund’.²³⁷

126.  Social assistance measures to mitigate the impact of Covid-19 included a top-up child support grant increase of ZAR 300, as well as a top-up of existing old age and disability grants with an additional ZAR 250, from May until October 2020. In addition, the Social Relief of Distress Grant for Care Givers (‘CSG Caregiver Allowance’) of ZAR 500 for care givers was put in place for five months, from June to October 2020.²³⁸ The CSG Caregiver Allowance was targeted toward adults receiving child support grants on behalf of children in their care.

127.  In accordance with prevailing law,²³⁹ food parcels were provided through the Department of Social Development Centre Based Feeding Programmes, in partnership with the SF. This was a national operation but was coordinated through provincial departments of social development.

128.  The Social Assistance Amendment Act came into effect on 30 May 2022.²⁴⁰ The Act includes a provision empowering the Minister of Social Development to pay additional amounts or ‘top-ups’ to grant beneficiaries based on need. This provision will enable introduction of the Child Support Grant Top-Up for orphans in the care of relatives.

129.  Vulnerable groups further benefitted from an explicit prohibition on evictions during lockdown levels 5 and 4, whereas evictions were allowed from levels 3 downwards only after the party seeking eviction had obtained a court order in compliance with prevailing legislation,²⁴¹ which could only be executed after the lapsing of the state of disaster.²⁴²

130.  In the case of Community of Hangberg and Another v City of Cape Town, the City of Cape Town was ordered to rebuild an informal dwelling it had demolished in contravention of the prohibition of evictions.²⁴³ In South African Human Rights Commission v City of Cape Town, the South African Human Rights Commission obtained a blanket interdict restraining the City of Cape Town from carrying out any evictions in informal settlements, in compliance with the Covid-19 regulations.²⁴⁴

131.  A Covid-19 Social Relief of Distress Grant of ZAR 350 was introduced, for six months from May to October 2020. The grant is targeted at individuals above the age of 18, unemployed persons, and persons who neither receive any income nor any other social grant or support from the UIF. This grant has since been extended to 31 March 2024.²⁴⁵

132.  The tax relief scheme included a deduction with respect to donations to Covid-19 disaster relief organizations and an increase in the annual donations limit, to enable donations to the SF. In addition, some taxes were deferred—the filing requirement and the first carbon tax payment which was due by 31 July 2020 was deferred to 31 October 2020, and then another deferral of 35 per cent was given until March 2021.²⁴⁶ Existing legislation such as the National Credit Act, Insolvency Act, and the Companies Act contains protections for insolvent individuals and companies.²⁴⁷

133.  On 25 March 2020, the Minister of Employment and Labour issued a Directive establishing a Covid-19 Temporary Employer/Employee Relief Scheme (Covid-19 TERS) to compensate employees affected by the full or partial closure of their employer’s operations as a result of Covid-19.²⁴⁸ Covid-19 TERS benefits were to be administrated by the UIF. In terms of this directive, the UIF would further assist affected workers through existing benefits including illness, reduced work time, unemployment, and temporary employer/employee relief scheme benefits.²⁴⁹

134.  In terms of a credit guarantee scheme offered as part of the Recovery Plan, the private banking sector was required and enabled to extend loans to firms in financial distress. The credit guarantee scheme was an initiative to provide loans, guaranteed by the government, to enable businesses with an annual turnover of less than ZAR 300 million to meet some of their operational expenses. Funds borrowed through this scheme could be used for operational expenses such as salaries, rent and lease agreements, and contracts with suppliers.²⁵⁰ The loan guarantee scheme also included a business restart option for businesses (regardless of turnover) that needed support to restart after the lockdown.²⁵¹

135.  The Tourism Relief Fund is a facility providing once-off capped grant assistance to small, medium, and micro enterprises (SMMEs) in the tourism industry, to ensure their sustainability during, and after, the lockdown period. Capped at ZAR 50,000 per entity, funding could be utilised to subsidise expenses towards fixed costs, operational costs, and payment of suppliers.²⁵²

136.  The Debt Relief Finance Scheme was a temporary soft-loan facility aimed at assisting SMMEs with staying afloat during the initial months of the pandemic. It applied for a period of six months from April 2020.²⁵³ A related scheme, the Debt Restructuring Facility, was geared towards SMMEs funded by the Small Enterprise Finance Agency (SEFA) and provided a six-month payment holiday to qualifying SMMEs to reduce the instalment burden of loan obligations.²⁵⁴

137.  In terms of the Covid-19 TERS scheme, where employers fully or partly had to cease operations and close their premises due to the pandemic for a period of three months or less, they had to apply for Covid-19 benefits for and on behalf of their affected employees. The benefits would pay for the cost of salary for the employees during the temporary closure of the business operations.²⁵⁵

138.  In case of unemployment due to being ill with Covid-19, employees were offered a salary replacement rate of between 30–60 per cent of the applicant’s salary for the first 238 credit days and another flat 20 per cent from 239 days to 365 credit days. Employees accumulated one credit day for every four days they worked. The maximum amount of payable credit days is 365 for every four completed years.²⁵⁶

139.  A ministerial directive protected unemployment or loss of self-employed income due to the decline of trade or mandatory closures. Employees were given an income replacement rate of between 38 and 60 per cent up to a maximum of ZAR 17,712 and a minimum of ZAR 2,500 per month, per employee. This measure was in force between May and October 2020 and applied also to self-employed workers, but not to workers in the informal economy.²⁵⁷

140.  The Covid-19 Direction on Health and Safety in the Workplace issued by the Department of Employment and Labour sets out specific measures that employers are required to take to protect employees from Covid-19 in the workplace. These include risk assessments and plans for protective measures at workplaces, as well as administrative measures such as the appointment of Covid-19 compliance officers, implementation of social distancing and symptom screening measures, the wearing of personal protective equipment where appropriate, and ventilation control.²⁵⁸ This directive was supplemented with specific guidelines for particular sectors.²⁵⁹

141.  Judgments by the labour courts and workplace arbitration bodies indicated that non-adherence to Covid-19 safety protocols could warrant an employee’s dismissal. In Eskort Ltd v Mogotsi and ors, the Labour Court found that a knowingly Covid-19 positive employee’s non-compliance with regulations pertaining to mask-wearing constituted gross misconduct and negligence, and warranted dismissal.²⁶⁰ In Diabela v Shoprite Checkers the Commission for Conciliation, Mediation and Arbitration (CCMA) upheld the dismissal of an employee who reported for work while awaiting her Covid-19 test results, which subsequently turned out to be positive, in contravention of directives. The Commissioner found that the employee’s conduct was both reckless and constituted a breach of the relevant workplace rules and regulations.²⁶¹

142.  The social relief offered as part of the Recovery Plan included a Business Growth/Resilience Facility targeted at SMMEs who locally manufacture or supply hygiene products, medical products, and food items, which were in demand due to efforts to curb the virus. This instrument offered working capital, stock, bridging finance, order finance, and equipment finance.²⁶²

143.  Similarly, a Covid-19 Agricultural Disaster Support Fund offered support for smallholder and communal farmers producing poultry, vegetables, fruits, livestock, and winter field crops. The facility was available to smallholder/communal farmers with a minimum turnover of R20,000, but not exceeding ZAR 1 million per annum.²⁶³

144.  The National Economic Development and Labour Council (NEDLAC) is a statutory consultative forum aimed at facilitating cooperation between government, trade unions, business, and community organisations on economic, labour, and development issues and related challenges.²⁶⁴ It established a Covid-19 Rapid Response Task Team to enable social partners to collectively respond to the Covid-19 pandemic. Through NEDLAC, business and organised labour provided input into proposed economic recovery measures and contributed to the national effort to secure and ensure vaccinations, open up the economy, manage Covid-19 in the workplace and provide relief for workers and the unemployed.²⁶⁵

145.  Trade unions, through their bargaining councils, signed memorandums of understanding with the UIF for the distribution of Covid-19 TERS benefits to their qualifying members.²⁶⁶ Trade unions also participated, through NEDLAC, in discussions for the annuitisation of provident funds beginning in March 2021, in terms of which workers would continue to enjoy tax deductions on their contributions.

146.  There is no relevant information to report in this category.

147.  The constitutionality of several of the movement restrictions imposed by the various lockdown regulations have been challenged on more than one occasion. For the most part, these challenges have been unsuccessful, with courts, including the Constitutional Court, typically upholding and enforcing the movement restrictions.²⁶⁷ A constitutional challenge to some of the restrictions associated with alert levels 3 and 4 was upheld in De Beer v Minister of Cooperative Governance and Traditional Affairs, where the Pretoria High Court found that an unspecified number of restrictions were irrational and accordingly fell foul of the constitutional requirements for the reasonable and justifiable limitation of rights under section 36 of the 1996 Constitution.²⁶⁸ But an appeal against this judgment was upheld, with the Supreme Court of Appeal criticising the applicants’ arguments for being misleading and for amounting to Covid-19 denialism.²⁶⁹

148.  During the initial ‘hard’ lockdown there was an increase in police brutality, with six people allegedly losing their lives in the enforcement of lockdown regulations.²⁷⁰ In Khosa and ors v Minister of Defence and Military Defence and Military Veterans and ors, the applicants approached the High Court for a declaration of rights stipulating that all law enforcement agencies had to respect the constitutional rights to dignity, life, and not to be tortured or punished in a degrading manner, during the enforcement of lockdown regulations.²⁷¹ The case was brought after the death of Collins Khosa, who was assaulted by members of the South African National Defence Force (SANDF) when they found (prohibited) alcohol at his premises. The applicants also requested that there should be an easily accessible mechanism through which to report abuse by law enforcement authorities during the lockdown period. The order was granted, and the South African Police Service added extra capacity to its National Service Complaints Centre, to enable the public to report any allegations of wrongdoing against law enforcement officials.²⁷²

149.  Contact tracing was initially conducted manually by healthcare workers. To complement manual contact tracing, regulations introduced digital contact tracing and established a national Covid-19 tracing database.²⁷³ Private and public laboratories, places of accommodation, and electronic communications service providers generate data for the database. The regulations provide that laboratories must communicate test results and details of the person tested directly, and do not require tested patients’ consent for this. Electronic communication service providers can further be compelled to provide information regarding the location or movements of persons known or reasonably suspected to have contracted Covid-19 or to have been in contact with a possible Covid-19 case. After six weeks, all information must either be de-identified or destroyed.²⁷⁴

150.  A smartphone contact tracing application was developed by the Department of Health to assist with contact tracing of people exposed to Covid-19. The application works via Bluetooth and is built on the Apple-Google Exposure Notification application.²⁷⁵ No personal data is stored, but random codes are generated to assist with tracing and tracking individuals to provide advice on a managing strategy—be it referral for testing or suggesting self-isolation. Concerns have been raised regarding the application’s efficacy in relation to its uptake and proper functioning in rural areas.²⁷⁶

151.  Former Constitutional Court Judge Catherine O’Regan was appointed to oversee and ensure the protection of the right to privacy with regards to contact tracing and associated tracking procedures.²⁷⁷

152.  With the availability of vaccinations and greater appreciation for the costs involved in managing the Covid-19 pandemic, all active contact tracing was stopped in February 2022, except for tracing pursuant to cluster outbreaks in health or care facilities.²⁷⁸

153.  Covid-19 and the ensuing lockdown had a disproportionate social and economic impact on women. Most job losses were in the informal sector, where most poor women work and, during lockdown, women have disproportionately borne the burden of care for children, the elderly, and the sick. Women were also more likely to visit public health facilities to access healthcare for themselves and those in their care, which has in turn been associated with a gender discrepancy in exposure to Covid-19 at health facilities.²⁷⁹

154.  South Africa has long had particularly high rates of gender-based violence (GBV),²⁸⁰ the eradication of which has in recent years been a policy priority.²⁸¹ Socio-economic tensions associated with lockdown led to a drastic increase in GBV, with 2,320 cases of GBV reported during the first week of lockdown, a 37 per cent increase from the same period in 2019.²⁸² President Ramaphosa publicly condemned this and instructed ministers to further engage with communities in this regard.²⁸³

155.  Although most court trials and the lodging of new civil matters were suspended during lockdown levels 5 and 4, individuals were still allowed to file domestic violence protection orders and courts were instructed to continue processing these matters.²⁸⁴ With the reopening of courts and the resumption of trials, priority has been assigned to matters concerning GBV and femicide.²⁸⁵

156.  During lockdown levels 5 and 4, no-one was allowed to visit or leave domestic violence shelters.²⁸⁶ Survivors of gender-based violence were only allowed to leave shelters, if they were ready to do so, from 9 May 2020.²⁸⁷

157.  Considering the racial dimensions of poverty and socio-economic inequality in South Africa, due to the legacy of Apartheid, Covid-19 has had a disproportionate impact on black South Africans.

158.  There was some controversy around the allocation of certain Covid-19 relief funding, with guidelines for disbursement of relief in the tourism industry giving preference to black-owned businesses in line with pre-existing legislative and policy criteria pertaining to affirmative action and Black Economic Empowerment.²⁸⁸ The constitutionality and legality of these guidelines were unsuccessfully challenged before the High Court by organisations popularly known for representing the interests of white South Africans.²⁸⁹ The matter was subsequently heard by the Supreme Court of Appeal, which found that the Minister’s decision to apply Broad-Based Black Economic Empowerment criteria to relief funds was not authorised in terms of the applicable empowering legislation, and was therefore invalid.²⁹⁰

159.  Lockdown directives issued by the Department of Social Development clearly required universal access for persons with disabilities to all service points, infrastructure, and other essential services and products related to Covid-19. The directives further required that persons with disabilities must have access to personal assistance at all service points, hospitals, screening, testing facilities, supermarkets, and other relevant services.²⁹¹ Home-based care for disabled persons was allowed to continue during all levels of lockdown.

160.  The Government allowed extended leave and other support measures for care for people with disabilities, including a special Covid-19 top-up of ZAR 250 between May and October 2020.²⁹²

161.  Many disabled persons receive financial assistance from the State, in the form of disability grants.²⁹³ Grant payments continued unhindered during the lockdown period.²⁹⁴ Disability grants and temporary disability grants that were due to expire during the lockdown period were extended until the end of December 2020 and were increased by ZAR 250.²⁹⁵ Bank ATMs, where grants could be collected, were required to display a message stating that customers should be mindful of the needs of elderly people and persons with disabilities collecting their grants. From May 2020, all disability and old age grants were to be paid from the fourth day of each month, and all other social grants on the sixth of every month.²⁹⁶

162.  In January 2021, grant offices were overwhelmed with reapplications for temporary disability grants that expired at the end of December 2020. Long queues were observed outside social security offices and the observance of social distancing was problematic.²⁹⁷ The South African Police Service was severely criticised for attempting to enforce social distancing by using a water canon at the Belville Grant Office in Cape Town.²⁹⁸ The Government indicated its commitment to process all qualifying applications for the renewal of these grants quickly.²⁹⁹

163.  The Government allowed extended leave and other support measures for care for the elderly population, including a special Covid-19 top-up of ZAR 250 between May and October 2020.³⁰⁰

164.  Visits to individuals in old age homes and care facilities were entirely prohibited with the implementation of lockdown regulations.³⁰¹ Visitation was only allowed under very limited circumstances from 1 May 2020, and restrictions on visits to private facilities were lifted on 18 August 2020. State facilities only followed suit on 11 September 2020. Visitors to State-run facilities had to complete a pre-screening call-in order to check for symptoms and possible exposure to Covid-19.³⁰²

165.  Many elderly persons in South Africa are financially dependent on old age grants from the State.³⁰³ With movement restricted, directives by the Department of Social Development made it clear that the payment of social grants was to continue unhindered, and was to be increased by an amount of ZAR 250.³⁰⁴ The special payment arrangements and notices that pertained to grant collections by disabled persons also extended to the elderly.³⁰⁵

166.  All businesses had to provide special measures for employees above the age of 60 who are at higher risk of complications or death if they are infected with Covid-19.³⁰⁶ Public service employees above the age of 60 could work remotely in order to prevent infection.³⁰⁷

167.  With a phased approached adopted by the South African government in distributing Covid-19 vaccines, persons above the age of 60 were prioritised to receive vaccines during the second phase of roll out, directly after health care workers.³⁰⁸ By 31 December 2022, all persons above the age of 50 were eligible to receive four doses of the vaccine, with adults aged between 14–49 eligible to receive three doses. The Department of Health indicated that it would likely recommend an additional booster for adults aged between 18–49 (four doses) and 50 years and older (five doses) in early 2023.³⁰⁹

168.  The Government gave parents extended parental leave and other support measures for childcare, including a special top-up of the child support grant by ZAR 300 per child between May and October 2020. The top up was given in terms of a ministerial directive.³¹⁰

169.  In addition, the Department of Basic Education, together with provinces, prepared online and broadcast support resources for all the grades to assist remote learning.³¹¹ Statistics South Africa has indicated that only 11.7 per cent of schools around the country offered remote learning options.³¹²

170.  No measures specifically addressed the needs of disabled children during school closures, raising concerns for their specialised care.³¹³ All schooling, including schooling for pupils with physical and intellectual disabilities, was suspended between 18 March and 1 June 2020, and again between 27 July and 24 August 2020.³¹⁴ In Centre for Child Law v Department of Basic Education, the Centre for Child Law approached the High Court on an urgent basis, requesting the invalidation of the regulations that allowed for school closures as they failed to cater for the needs of learners with disabilities.³¹⁵ The court granted the order and instructed government to include arrangements for these learners in amended regulations.

171.  The National School Nutrition Programme (NSNP), which provides one nutritious meal per day to school-going children in disadvantaged communities, was suspended during school closures. With the phased reopening of schools which started on 1 June 2020, the programme resumed for Grade 7 and 12 learners only. Civil society organisations successfully challenged this before the High Court. In Equal Education and ors v The Minister of Basic Education and ors, the Court found that all qualifying learners were entitled to receive a daily meal irrespective whether they resumed classes or not, based on the constitutional obligation to respect the right of children to basic nutrition. It ordered the Department to fully reintroduce the programme in relation to all qualifying learners.³¹⁶

172.  On 29 May 2020, the Minister of Social Development issued a circular indicating that Early Education Centers would remain closed despite the approved phased reopening of schools.³¹⁷ This decision was successfully challenged in Skole-Ondersteuningsentrum NPC and ors v Minister of Social Development and ors, where it was found that that the blanket closure of Early Education Centers was unlawful.³¹⁸ A subsequent challenge against provincial Departments of Social Development’s withholding of subsidies to Early Education Centers also succeeded,³¹⁹ thereby enabling them to reopen.

173.  The restriction of movement during the initial ‘hard’ lockdown prohibited the movement of children between co-holders of parental responsibilities and rights.³²⁰ Children had to remain with the caregiver with whom they were staying at the commencement of lockdown, unless it could be shown that the child was in danger of imminent harm. The regulation was amended shortly thereafter to allow a child to be moved if a court order was granted or if there was an existing parental plan registered with the family advocate’s office.³²¹ In CD and Another v Department of Social Development, divorced parents of two children obtained a High Court order allowing their children, who were visiting their grandparents in another province when lockdown was implemented, to return home.³²²

174.  During lockdown level 5, the South African Government decided to parole several low-risk prisoners to increase the ability to socially distance in prisons and remedy overcrowding.³²³ The decision was criticised by opposition parties, who regarded it as irresponsible and poorly planned.³²⁴ It was reported in July 2020 that only 7,000 prisoners of the initially targeted 19,000 had been released.³²⁵

175.  The lockdown regulations suspended all visits to correctional facilities, including remand detention facilities, holding cells, and military detention facilities.³²⁶ Visits were allowed to resume from 4 September 2020 onwards, with adherence to Covid-19 safety protocols and the wearing of face masks.³²⁷

176.  Although all trials, including criminal trials, were suspended during lockdown, directives determined that remand detainees still be referred to court for the consideration of the length of their detention and bail, in an attempt to reduce the number of persons incarcerated during lockdown.³²⁸ Although prisoners were not able to consult their legal representatives in person during early lockdown levels, telephone communication was allowed where circumstances and resources permitted.³²⁹

177.  The Department of Health announced that prisoners would be among the priority groups to receive vaccines.³³⁰ This prioritisation was criticised as undeserving by some opposition parties.³³¹

178.  Asylum seekers and refugees have the right to remain lawfully in South Africa and move freely throughout South Africa if they have the right documentation.³³² South Africa does not have refugee camps and refugees have the same constitutional rights as citizens. Only recognized refugees are eligible to access social grants through the South African Social Security Agency, which places undocumented individuals in a precarious position.³³³

179.  Certain lockdown regulations attracted criticism for discriminating against refugees and asylum seekers. In the initial lockdown, only South African-owned ‘spaza shops’ (small-scale, informal supermarkets, dominant in township-areas) could remain open as part of essential service provision. This arrangement was later retracted, and the allowance was extended to all spaza shops.³³⁴

180.  Only refugees registered with the Department of Home Affairs could qualify for the Special Relief of Distress Grant of ZAR 350, paid monthly from May 2020 until January 2021.³³⁵ The exclusion of asylum seekers from this benefit was successfully challenged by the Scalabrini Centre, with the High Court finding that asylum seekers with the necessary documentation and complying with the relevant criteria should also qualify for the grant.³³⁶

181.  The South African vaccine electronic data system requires a person to be in possession of a South African identity number, foreign passport number, or an asylum/refugee number, in order to access a vaccine. Many undocumented individuals could therefore not access vaccines. With the escalating infection rates due to the Omicron variant, the South African Government made vaccines available to undocumented individuals, administered through vaccine pop up centres.³³⁷

182.  There were no specific measures to address the situation of indigenous peoples.

Ms. Petronell Kruger, School of Public Health, University of the Witwatersrand

Dr. Khulekani Moyo, School of Law, University of the Witwatersrand

Mr. Paul Mudau, Faculty of Law, University of South Africa

Prof. Marius Pieterse, School of Law, University of the Witwatersrand

Prof. Amanda Spies, Faculty of Law, Nelson Mandela University