Justifications and acceptability of coercive public health measures in the COVID-19 response in South Africa: a case study of the jurisprudence of human rights cases.

Abstract

South Africa implemented a comprehensive response to COVID-19 comprising of several coercive public health measures. As in many countries, COVID-19 measures were subject to a number of legal challenges on the grounds that these measures infringed on individual rights and liberties. Here, courts were required to assess the extent to which these limitations were justifiable against the state's imperative to improve public health. Consequently, the acceptability of different justifications of coercive public health measures during the COVID-19 pandemic in South Africa may be understood and assessed through the lens of its jurisprudence. This paper seeks to outline the approach to allowing, or disallowing, coercive public health measures as adopted by the judiciary as arbiters of allowable human rights infringements and thus permitting or prohibiting the state from exercising coercive powers. Specifically, this analysis aims to identify the principles underpinning the decisions with an expressly ethical lens with a view to providing content for the operationalisation of justifications for coercive state action such as the harm principle, reciprocity, least restrictive means in relation to the promotion of public health and the limitation of individual liberty.