Human Rights C. Human rights-related issues arising from COVID-19 responses of South Africa
  • Right to health
    On 1 April 2020, the Minister of Health, Dr Zweli Mkhize, launched 60 new mobile laboratories to increase South Africa’s capacity to test for COVID-19. The sampling and testing units, procured by the National Health Laboratory Service (NHLS), were deployed nationwide to all priority districts and metros. 10 000 community health care workers were also deployed across the country for door-to-door household screening. Each province was requested to deploy provincial community healthcare workers, with appropriate Personal Protective Equipment, to undertake a house-to-house programme of “no-touch” screening for COVID-19 symptoms and to refer symptomatic people to clinics for testing. In addition, PEPFAR-funded District Support Partners were instructed to support provinces in this programme. As at April 2020, South Africa had the capacity to conduct 5000 tests for COVID-19 daily. However, with the addition of mobile testing units, combined with 180 testing sites and 320 testing units across the country, the number is expected to increase six-fold. 

    For the period 1 March 2020 through to 6 July 2020, 1 907 532 laboratory tests for COVID-19 were conducted nationally. Four provinces including Western Cape, Eastern Cape, KwaZulu-Natal and Gauteng accounted for 82% of tests performed up to the 06 July 2020. The overall percentage testing positive was 11.8%. According to the Minister of Health, the Community Screening and Testing (CST) Programme initiated on 7 April 2020 has ensured that more than 20 million people have been screened and 302 713 suspected cases have been referred for testing. With regards to quarantine, as at 7 July, South Africa has activated 139 quarantine facilities across the country. It constitutes a total of 12 532 beds. 

  • The COVID-19 virus has greatly affected health workers that are at the forefront of preventing the spread of the pandemic. As at 30 June 2020, 4 821 Health Care Workers (HCWs) were reported to have been infected with the Covid-19 virus across the country. This data represents cases of health workers in both the public and private sector. The Western Cape Province continues to account for the majority (68%) of infected Health Care Workers with 3 285 infections as at 29 June 2020. The leading number of infections are amongst nurses with 2 473 infections followed by other health professionals including community health workers reporting 1 971 and doctors recording 377 infections. To this effect, the government has commenced targeted and in-service training programme for health care workers to improve their understanding of the pandemic  and ensure that they can cope with the management of the pandemic. There have also been efforts to improve the availability of PPE’s for health workers and South Africans in general through the sum of R815 million from the Solidarity fund and donations of PPE from several countries, foundations, businesses and Churches. As alluded above, the corruption scandals involving the purchase of Personal Protective Equipment have resulted in lack of necessary kits for both health workers and citizens.

    The National COVID Epi Model has been updated to model COVID-19 at a district level, making use of South African hospitalisation data, updated estimates of the reproductive number, and a shift in testing priorities. However, the availability of ICU and non-ICU beds in the hospitals remains a big challenge in the health sector. In order to address this challenge, the Department of Health has developed and is implementing the Surge Strategy, in anticipation of the peak. This will ensure that the department increases capacity for COVID-19, while at the same time continuing to deliver other health services to the health care users. During this process, the Department repurposed a total of 27 467 beds for COVID-19, which has increased to 40 309 beds as the provinces started to experience a sudden increase in the number of cases. The Department of Health has built several field hospitals, which will primarily be used for admission of mild cases. The Western Cape has completed constructing three field hospitals which are functional. Gauteng (NASREC), KwaZulu-Natal (Pietermaritzburg) and Eastern Cape (Port Elizabeth, VW) each have one field hospital which are also operational. The department of health is also gearing up efforts to address the gaps in the supply of oxygen and the local design, development, production and procurement of respiratory ventilators.

    On 25 August 2020, the Minister of Health made a presentation to the WHO Regional Committee for Africa Meeting on South Africa’s COVID-19 experiences. The presentation indicated that within the SADC region, South Africa continues to have the highest number of cases accounting for 90% of all cases and 91% of all deaths. It also showed that South Africa’s case facility rate of 2.1% is lower than the average global rate of 3.5%. 

    The department of health consistently update statistical information on its website about the coronavirus. Some of the provincial government's department of health (Western Cape, KwaZulu-Natal & Mpumalanga) also have updates on COVID-19. 

    South Africa has been involved in international clinical trials for COVID-19 vaccine. In June 2020, South Africa commenced its first COVID-19 clinical trials. The clinical trials for the ChAdOx1 nCoV-19, a vaccine developed at the Oxford Jenner Institute in the UK was led by Shabir Madhi, Professor of Vaccinology at Wits University and Director of the South Africa Medical Research Council (SAMRC) Vaccines and Infectious Diseases Analytics Research Unit (VIDA). South Africa has also commenced second COVID-19 clinical trials: the Novavax (NVX-CoV2373) COVID-19 vaccine trials. The NVX-CoV2373 is a vaccine developed by US biotech company Novavax from the genetic sequence of SARS-CoV-2, the virus that causes the COVID-19 disease. The NVX-CoV2373 clinical trial is partly funded by a $15 million grant from the Bill & Melinda Gates Foundation. The screening of volunteers for the South African Novavax COVID-19 vaccine trial commenced on 17 August 2020.  A third trial for Ad26.COV2-S, a Johnson & Johnson product, is set for September 2020. 

    The rationale for getting involved in COVID-19 clinical trials is to improve the understanding of how the COVID-19 Vaccines are likely to work within the African settings. The participation will also put South Africa in an advantageous position to access the vaccines for its citizens as soon as the vaccines become available.

  • Right to housing (including homelessness, informal settlements, slums, shacks) 
    The impact of the COVID-19 pandemic has been greatly felt in the informal settlements of South Africa. The department of Human Settlement has been involved in a series of activities to minimise and mitigate the rate of COVID-19 infections and spread, through interventions in vulnerable households and communities, with focus on informal settlements, hostels, inner-cities and backyards. The measures being implemented include the provision of personal and household hygiene support – Sanitizers, information on making of masks, provision of soap.  The department has embarked on the decongestion and resettlement of households to complete units in informal settlements, mass sanitation and disinfection of common areas within informal settlements. The Department has identified over 29 overcrowded informal settlements with 356 000 households across the country for relocation including re-blocking and de-densification. In the Metropolitan Municipalities, the department has also identified suitable vacant buildings that have been identified to accommodate people living on the streets. Additionally, in the Provinces where subsidised houses were in the process of being completed – the process is being expedited to allow for relocation of households out of informal settlements.

    The Ministerial briefing to the National Council of Provinces on 7 July 2020 also revealed that the different provinces have geared up their efforts in the relocation and dedensification of informal settlements to mitigate the spread of the virus.
    Even though the Alert Level 5, 4 and 3 lockdown regulations placed a general moratorium on evictions except on the basis of a court order, as a measure to safeguard the right to hosing during the COVID-19 pandemic, there have been situations of eviction and demolition of houses, particularly informal settlements during the COVID-19 lockdown. There was also a video of a naked man who was allegedly dragged out of his shack in an informal settlement by officials of the Anti-Land Invasion Unit (ALIU) of the City of Cape Town. There have also been instances of the demolition of shacks and brick houses by Red Ants in the Kokotela Informal settlement in Johannesburg. The demolition was monitored by Johannesburg Metro Police Department and SANDF members. 

    The demolition was conceded by the Gauteng Provincial Government in its presentation before the Portfolio Committee on Cooperative Governance and Traditional Affairs on 6 August 2020. The head of the delegation admitted that the province is evicting people who occupied houses and land illegally. 

    The unlawful eviction carried out in different provinces in the country has generally been condemned by civil society and there have been calls for directives under the DMA specifically prohibiting the demolition of buildings without a court order. 

    In response to the series of demolition and evictions in informal settlements, the SAHRC and 2 Ors instituted an application against the City of Cape Town before the High Court in the Western Cape Division. The application seeks inter alia to inject judicial oversight into evictions and demolitions during the national state of disaster in informal settlements in particular, where the most vulnerable residents. The application seeks amongst other reliefs to restrain ALIU and any private contractors appointed to do the same or similar work or to perform the same or similar functions as the ALIU from evicting persons from and demolishing, any informal dwelling, hut, shack, tent or similar structure or any other form of a temporary or permanent dwelling or shelter, whether occupied or unoccupied, throughout the City Metropole during the lockdown period except in terms of an order of court duly obtained. The court ruled in favour of the applicants. In addition to restraining the City of Cape Town from unlawful eviction or demolition, safe with the order of a court, the court ordered the City of Cape Town to return within a week of the date of the court’s order all building materials and personal possessions seized by its Anti-Land Invasion Unit from the Second Applicant, and to also pay the sum of R2000 to the persons who are unlawfully evicted.

    There have also been concerns about the safety of homeless people in the city of Cape Town. NGOs working with homeless people now say they believe there may have been numerous cases of COVID-19 at temporary safety sites for homeless people. 

    In order to address the issues of the demolition of residence, the current alert level 2 lockdown regulations, under regulation 53(1) specifically stated that “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition. 

  • Right to water and sanitation
    There have been general efforts by the Department of Water and Sanitation (DWS) to improve the supply of water, as part of concerted efforts to ease the impact of the COVID-19 pandemic. In a Media statement released on 23 April 2020, the DWS stated that ‘The provision of water and soap by government is significant in the fight against the coronavirus and has immensely contributed in curbing the pandemic by allowing citizenry to wash hands with water and soap and to frequently sanitise and disinfect surfaces.’  In a Media Statement released by the DWS, on 17 June 2020, it was stated that the DWS North West Region delivered 19 water trucks and 248 water tanks to 64 schools across the four district municipalities in North West to fight the spread of COVID-19. The delivery comes at a time where both Grade 7 and 12 learners across the country returned to schools since they were closed in March to prevent the spread of the disease. The DWS has also notched up the rollout of water tanks to needy communities in Gauteng to 2 211 water tanks. The DWS also delivered 4 200 water storage tanks and 532 water tankers (water trucks) to various District and Local Municipalities in the province of KwaZulu-Natal in the month of May. The department has also delivered 5624 water tanks in Eastern Cape.

  • Right to food/ nutrition and other socio-economic rights 
    South Africa’s socio-economic fiscal relief response was to release 500 billion rands into the economy. The socio-economic relief plan was based on 3 approaches:

The expansion of existing social insurance system to reach a large proportion of the labour force
Expansion of existing social assistance programme of grants
Expansion of social relief efforts through local governments and non-state institutions.

In conjunction with Department of Social Development and local Community Based Organizations, the Department of housing have assisted households to access food relief and social grant assistance.

Despite the commendable socio-economic relief efforts of the government, research has shown that significant households in South Africa are still feeling the economic hardship of the lockdown measures. A research conducted between May and June showed that two out of every five adults’ household had lost its main source of income since the lockdown started. This loss of income which is applicable to both pre-covid-19 grant receiving and non-grant receiving households have led to a significant increase in food poverty and hunger.

Twenty one percent of the people interviewed stated that someone in their household went hungry for 7 days and 15% of the interviewees claimed that a child went hungry within a period of 7 days.  The problem of food and nutrition have also been exacerbated by the suspension of the national school nutrition programme that usually reach about 9.6 million children. There is the need to improve the administrative capacity of relevant departments, particularly the department of social development in order to broaden the reach of short-term social insurance protection schemes. Efforts should also be geared at improving the administrative loopholes in the deployment of social assistance such as social grants, and community level social relief should be considered as an urgent priority for the government.

  • Economic impact/ impact small business/ employment social security networks
    According to the Presidency, the unemployment crisis in South Africa has been dramatically deepened by the economic effects of the global coronavirus pandemic. The President stressed the need for the country to use every means at its disposal to rebuild its economy, protect existing jobs & create new jobs. 

    In April, the President announced a historic R500 billion social relief and economic support package to direct resources towards our coronavirus response and assist businesses, workers and households. Part of the funding was aimed at providing direct support to households and individuals for the relief of hunger and social distress. As at 23 Jul, 2020 about R2.2 billion has been paid to over 4.4 million people through the special covid-19 grant which assists those who are unemployed and do not receive any form of support from the government. The special covid-19 grant was intended to be paid out for a period of 6 months. For the months of April, May and June, the UIF’s special COVID-19 benefit has paid out R34 billion, helping over seven-and-a-half million workers and preventing retrenchments in a number of companies. The UIF’s special COVID-19 scheme was extended by another 6 weeks to 15 August 2020.

    The Department of Small Business Development (DSBD) has come up with different intervention measures for small, medium and micro enterprise (SMME) in South Africa. The DSBD created the SMME Relief Finance Scheme, a soft loan facility that is intended to assist existing businesses in order to keep them as a going concern during the COVID-19 pandemic for a period of 6 months, from April 2020. The Business growth and Resilience Facility intends to fund SMMEs who produce or supply health care and related products that are required to combat the spread of COVID-19 pandemic. The Restructuring of SEFA-Funded Loans is a payment moratorium/holiday given to SEFA funded SMMEs for a maximum period of six months to reduce the instalment burden of loan obligations on clients during the COVID-19 period. The DSBD is also in consultation with organised informal business owners, Spaza shops and the self-employed in order to develop tailor made facilities for the informal sector. 

    According to the Presidency, through the R200 billion loan guarantee scheme, financial support has been provided to more than 8 600 small and medium-sized companies to the value of R12 billion. Over R70 billion in tax relief has also been provided to companies.

  • Women (including domestic violence)
    By the end of the first week of the lockdown, the Police Minister, Bheki Cele announced that there have been reports of 87000 gender based violence during the lockdown. The case of gender-based violence also included a police officer who was arrested for allegedly raping his wife during the lockdown. Western Cape and Free State provinces have the highest rate of arrest for gender based violence. It was reported that more than 120 000 victims rang the national helpline for abused women and children in the first three weeks after the lockdown started on 27 March - double the usual volume of calls 

  • Children (including education)
    Following the declaration of the declaration of a national state of disaster, schools were closed on 18 March 2020 and started only started re-opening around June 2020.  

    During the period of school closure, the Department of Basic Education (DBE) has engaged in different learner support programmes to ensure the education of children amidst the COVID-19 pandemic. The DBE has a dedicated online resources portal for parents, caregivers an learners to support learning at home. The COVID-19 support package on the online resource portal include study material, multimedia and reading material. The study materials are also available in braille on the website of the department. The DBE has also issued a standard operating procedures for teachers, non-teaching staff and learners on the COVID-19 outbreak in South Africa. 

    The Department of Basic Education and the South African Broadcasting Corporation (SABC) have engaged in multi-media learner support programme aimed at reducing the effects of the COVID-19 pandemic on the school calendar. The programme is broadcasted across three SABC TV Channels and 13 Radio stations with online support. The FREE STEM Lockdown Digital School was also expanded into community television in order to reach an even bigger audience. The COVID-19 learner support programme is available on two DSTV channels. 

    South Africa has adopted a cautious and phased return to schooling, beginning on 8 June 2020 with the return to school of learners in grades 7 and 12. On 6 July, learners from grades R, 6 and 11 returned to school. The resumption of schools took place following a mop-up exercise and monitoring of the readiness of schools to comply with COVID-19 imperatives  by the Department of Basic Education and stakeholders in the education sector in the first week of June. As at the time of resumption, the Minister for Basic Education had declared that 95% of South African Schools are in good shape to comply with COVID-19 imperatives and ensure the safety of pupils and staff.

    However, the schools were generally (with the exception of matric learners ,year 4 schools of skills learners and grade 7 learners) closed on 27 July 2020 and re-opened on 24 August due to increasing number of infections in the country. The academic year was also extended to 15 December, 2020. Under the Amendment of Directions Issued in Terms of Regulation 4(3) Of the Regulations made under the Disaster Management Act, 2002 (Act No. 57 Of 2002) Regarding the Re-Opening of Schools and Measures to Address, Prevent And Combat the Spread of Covid-19 in the National Department of Basic Education, all Provincial Departments of Education, All Education District Offices And All Schools In The Republic Of South Africa, the school nutrition programmes remained open and accessible for qualifying learners during the closure of the schools. In addition to the continuation of the school nutrition programme, the DBE was required to work  with schools to ensure that all learners have access to learning material, therapeutic support and continued teaching during the school break. The directions also allowed parents, upon an application in the prescribed form to suspend the attendance of school by a pupil on the grounds of learner’s health, COVID-19 related family anxiety, concerns for vulnerable members of the family, or preference for the learner to receive independent online tuition not provided by the school. In the event of the latter scenario, the parents or caregivers do not need an application for exemption. Parents and Caregivers who prefer to home-school their children are required to comply with the regulations outlined in the South African Schools Act. In the event of a positive test for COVID-19 or the need for a learner to self-isolate upon contact with a person with COVID-19, parents or caregivers are required to inform the school.

    The re-opening of schools in South Africa has polarised the stakeholders in the Education Sector. The Congress of South African students demonstrated against the re-opening of schools in Cape Town and Limpopo, and closed down schools in Cape Town in June. The South African National Civics Association also closed down Vukani Primary in Crossroads after a teacher tested positive.  The South African Human Rights Commission also threatened to institute court actions against the DBE. In addition to instructing its members to stay at home, the Educators Union of South Africa (EUSA) had approached the North Gauteng High Court in Pretoria to stop the phased re-opening of schools by the DBE in June. EUSA argued that the reopening of schools posed a risk to the lives of pupils and teachers. The position of Solidarity, who joined the suit as a friend of the court was however different. Solidarity argued that the continued closure of the school will amount to a violation of the constitutional rights of pupils and teachers, and it will have a disruptive impact on the academic year and schooling programme. The application by EUSA was struck out by the court.

    There have also been concerns over the right to education for children, amidst the gradual re-opening of schools in South Africa. The Centre for Child Law (CCL), has filed an application in the North Gauteng High Court against the Minister of Basic Education for her failure to adequately provide support, as well as provide proper health and safety measures, to all learners with disabilities who are returning to special schools and special school hostels, as well as to those who remain at home during the COVID-19 pandemic.

    There have also been issues of corruption with respect to the procurement of PPE for schools. For instance, there have been allegations of disappearance of large quantities of PPE in KwaZulu-Natal, costing the provincial department of education millions of rands. As at 27 June 2020, the Department of Basic Education stated that 523 learners and 1169 staff members have tested positive for COVID-19. The department also stated that 775 schools across South Africa had been impacted by the COVID-19. 
  • Persons with disabilities 
    In the implementation of its different projects to improve the right to housing during the COVID-19 pandemic and to also prevent the spread of the virus, the department of human settlement directed its implementing agents to ensure that priorities are given to women, youth, people with disabilities and military veterans.

  • LGBTI persons 
    Despite the protections in South Africa’s constitution and labour laws, LGBTI workers have reported increase in discrimination, harassment and violence. In addition, the exclusion of migrants and refugees from COVID-19 aids program including food parcel have affected LGBTI persons who fled to South Africa in order to escape persecution. 

  • Migrants
    Migrants are generally excluded from the socio-economic relief packages put in place by the government of South Africa. The Minister for small business and development stated that the relief packages meant for cushioning the effects of the lockdown will be exclusively reserved for South Africans.  In addition to the exclusion from the government relief packages, the economic situation of migrants have been compounded by the shutting down of migrant owned shops by the police in townships. There have been calls by CSOs for the government to adopt a non-discriminatory approach in its distribution of relief packages.

  • Persons deprived of their liberty
    The Department of Correctional Services constantly updates the incidence of Covid-19 in South African correctional facilities. As at 26 May 2020, the total number of confirmed Covid-19 cases in the Department of Correctional Services (DCS) stands at 746 with 264 officials and 482 inmates. The breakdown is as follows:

77 172 2 7 2 1  0 172
Inmates 413 57 0 12 0 0 2 57
Recoveries 72 89 1 10 0 0 0 89
Death Cases 3 3 0 0 0 0 0 3
Total 490 229 2 19 2 1 0 229

 Some of the problems in South Africa places of detention  includes overcrowding, a lack of accurate prison data and transparency, the prevalence of infectious diseases such as TB, and human rights violation such as assault, torture and isolation. 

  • Right to life and bodily security
    As alluded to above, there have been numerous arrests and a couple of deaths arising from the activities of law enforcement agents in enforcing the lockdown regulations.

  • Freedom of assembly
    Regulation 3 of the Consolidated Regulations issued in terms of section 27(2) of the Disaster Management Act by the Minister of Cooperative Governance and Traditional Affairs, in April 2020 placed an absolute ban on all form of gathering. The regulation authorised an enforcement officer to immediately disperse a gathering and take appropriate action including arrest and detention.

    Under the current alert level 2 regulations, gatherings are allowed, subject to the fulfilment of the requisite conditions at a faith-based institution, a funeral, a workplace for work purposes, conferences and meetings, cinemas, theatres, concerts and live performances, casinos, all auctions, weddings, a social event at a place of residence, concerts and entertainment events, events at function venues, Fitness centres and gyms, sports grounds and fields, swimming pools, beaches and public parks, museums, galleries, libraries and archives, personal care services, including hairdressing, beauty treatments, make-up and nails salons and piercing and tattoo parlours, restaurants, bars, taverns, shebeens, and similar establishments and all accommodation establishments and tour operators. 
  • Freedom of movement
    Regulation 11B of the consolidated regulations issued in terms of section 27 of the DMA, in April, confined every person to his or her place of residence unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, pension or seeking emergency, life-saving, or chronic medical attention.

    The restriction on the freedom of movement have been less restrictive under the current alert level 2 regulations. Under the alert level 2 regulations, every person is confined to his or her place of residence from 22h00 until 04h00 daily.

  • Freedom of expression/ access to information/ privacy/digital rights 
    With respect to access to information, South Africa has a comprehensive COVID-19 online resource and news portal. The website contains detailed information of regulations, policies and other measures that the government is taking in response to the COVID-19. The adequacy of access to information is also exemplified by the constant update of amendments that are made to the regulations and directions issued pursuant to section 27 of the National Disaster Management Act on the government’s COVID-19 online resource and news portal. 

    The regulations that were adopted in terms of section 27 of the DMA this law make it a criminal offence to publish false information about COVID-19 and the offence is punishable by a fine or six-month imprisonment or both.  There have been arrests for dissemination of false information about the COVID-19. A case in point is the arrest of a man for discrediting the COVID-19 tests kits and the public discouraged people from participating in the mass testing exercise that was to be initiated by the government. 

    With respect to privacy, Regulation 11H of the regulation issued in terms of section 27 of the DMA empowered the National Department of Health to develop and maintain a national database to enable the tracing of persons who are known or reasonably suspected to have come into contact with any person known or reasonably suspected to have contracted COVID-19. The COVID-19 Tracing Database shall include all information considered necessary for the contact tracing process to be effective, including but not limited to: the first name and surname, identity or passport numbers, residential address and other address where such person could be located, and cellular phone numbers of all persons who have been tested for COVID-19; the COVID-19 test results of all such persons; and the details of the known or suspected contacts of any person who tested positive for COVID-19.

    In order to protect the right to privacy of individuals, the information contained in the COVID-19 Tracing Database and any information obtained through the regulation is confidential. No person may disclose any information contained in the COVID-19 Tracing Database or any information obtained through the regulation unless authorized to do so and unless the disclosure is necessary for the purpose of addressing, preventing or combatting the spread of COVID-19.


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