Sandra Liebenberg

This article was originally posted on Maverick Citizen: Human Rights Day.

South Africa along with many countries across the globe are adopting far-reaching measures to deal with the Covid-19 pandemic. These have entailed multiple restrictions to fundamental civil and political liberties such as freedom of movement, assembly and association, privacy and freedom of expression.

In a public health disaster such as the present, these measures have the legitimate purpose of protecting public health. Provided that they are in terms of law and meet the requirements of reasonableness and proportionality, such measures will be considered justifiable limitations of rights in terms of section 36 of the South African Constitution and international human rights treaties.

But what about socio-economic rights, which are also enshrined in South Africa’s Bill of Rights as well as the International Covenant on Economic, Social and Cultural Rights to which South Africa is a state party?

Like all human rights, socio-economic rights are premised on the notion that all human beings have inherent human dignity, and their lives and well-being are equally valuable. If we are to take this commitment seriously it means that all people should have access to the social and economic goods and services they need to live a dignified life and to participate equally in society.

This in turn depends on having high quality, accessible public services such as health care, water and sanitation, housing support, education, and social security. When public service provision fails, people turn to the private sector to acquire these goods. This in turn fuels social and economic inequality as the poor cannot afford to purchase such services through the market.

Across the world many public health systems and other public services have been weakened by under-resourcing and austerity measures, accelerated by the 2007 - 2008 global financial crisis. South Africa has to cope with the historical backlogs of the colonial and apartheid era, along with high unemployment and a struggling economy. The UN Committee on Economic, Social and Cultural Rights has recently expressed concern about significant budget cuts in the health, education and other public service sectors, and their impact on South Africa’s already high levels of inequality as well as service-delivery gains.

Responding effectively to the Covid-19 pandemic will require a major channelling of additional human and financial resources to these under resourced social and economic sectors.

First and foremost, a significant infusion of resources into the health care sector is required, amongst others, for testing, contact-tracing, safety equipment for the medical personnel, intensive care beds and equipment, appropriate isolation and quarantine sites, the preparation and dissemination of health information, research and vaccine research and administration (once one becomes available).

It will in all likelihood require private health care resources such as critical care beds to be combined with public health care resources in a unified, comprehensive, and co-ordinated response to the looming public health crisis.

In Spain and recently Iran, temporary authority has been given to government authorities to take over the management of private health care facilities. A human rights based approach to the right to health in a public health emergency requires the prioritization of urgent health needs and the protection of the health of the public as a whole. Neither of these objectives can be met if health resources are fragmented and divided.

Secondly, the recommended measures to limit transmission of COVID-19 such as frequent hand washing with soap and implementing social distancing or isolation are particularly difficult to implement in the context of the overcrowded informal settlements and rural areas where many households still lack a regular and reliable piped water supply to their dwellings.  There has been significant growth in household access to clean water; according to Statistics South Africa in 2018 46,3% of households had piped water in their dwellings. But this means millions still do not.

Moreover, the legacy of apartheid spatial planning has left many households reliant on overcrowded taxi and train transport where social distancing and contact tracing best-practice protocols are impossible to apply.

These realities require a range of targeted mitigating measures such as tanked water supplies; disinfecting programmes; additional public transport facilities to reduce overcrowding; and a massive public education and outreach campaign to prevent disinformation and dangerous stigmatization of vulnerable groups. Some of these have already been adopted but more must be done to protect and shield the most disadvantaged communities from the impacts of this pandemic.

Thirdly, impoverished communities and the precariously employed are particularly vulnerable as the economic impacts of the pandemic bite deeply. They will be hardest hit by retrenchments and business closures and its ripple effect on dependants. As the Constitutional Court noted in the landmark Grootboom case, “[t]he poor are particularly vulnerable and their needs require special attention.”

In the South African context impoverished communities also bear the disproportionate burden of diseases such as HIV and TB rendering them more vulnerable to serious health consequences should they be infected with the coronavirus.

In this context, special measures are required to boost food and income security in these communities. In terms of the Regulations issued in terms of section 27 of the Disaster Management Act, the Minister of Trade and Industry may issue directions to protect consumers from excessive and unreasonable pricing of goods and services and to maintain their security and availability during the national state of disaster. These powers should be used to ensure that availability and affordability of food and other critical household goods such as soap and sanitary products.

An upscaling of provision of the social relief of distress grants and food packages in terms of the Social Assistance Act, 2004, is also called for in the current circumstances.

Other measures to ease the burden of the pandemic would include measures to protect people from being evicted from their homes, particularly low income families and those with children, elderly or disabled members.

The closures of schools and Universities will have a disproportionate impact on learners and students from impoverished families and communities.

As teaching and learning moves online, it is vital that urgent measures are taken to ensure that data is affordable and accessible to these groups so that online teaching does not aggravate the already deep educational inequalities in South Africa.

Finally, in the context of the closure of schools and the particular vulnerability of elderly persons and those with pre-existing health conditions, women will bear a heavy burden. This is due to gendered burdens of care work that falls disproportionately on their shoulders. Both government and private employers need to be conscious of this reality and respond through adopting flexible workplace policies and support programmes particularly targeted to alleviating this burden.

The coronavirus pandemic has illuminated the critical role of socio-economic rights in securing a dignified life for all and in countering social and economic inequalities. There is a silver lining to this dark cloud.  It is the hope that the short-term efforts we now make to protect these rights in a crisis will translate into long-term public and private resource mobilisation for securing accessible, affordable and quality public goods and services for all.

Sandra Liebenberg is Distinguished Professor and H F Oppenheimer Chair in Human Rights Law, Stellenbosch University.