Can the government force you to undergo testing for Covid-19?

03 April 2020 , Eldon Ward 854

"I recently attended a business conference and at the conference various international representatives were present. Days after the conference I found out that 5 international representatives who attended the conference have tested positive for Covid-19. Can the government force me to undergo testing for Covid-19 even though I show no signs or symptoms of being infected after being in contact with persons who have tested positive?"

If you are thinking that being forced to undergo testing for Covid-19 is in contravention of your constitutional rights then think again! As a result of the spread of the infamous Covid-19 virus the South African Government has declared the situation a ‘national state of disaster’ and has in addition issued certain Regulations in terms of the Disaster Management Act. The purpose of these regulations is to try and slow down and or prevent the spread of the Covid-19 virus in South Africa.

These regulations put in place limits and/or impedes on a number of our constitutional rights, such as our right to privacy and or the right to freedom of movement. The limitation of these rights will however be in terms of and in accordance with section 36 of our Constitution. Section 36 makes provision for our rights, as guaranteed in the Bill of Rights, to be limited in terms of a law of general application, subject to certain requirements which includes, among others, the nature and extent of the limitation, the importance of the limitation and whether less restrictive measures may be utilised to achieve the purpose of the limitation.

The Regulations that have been published in terms of the Disaster Management Act thus qualifies as a law of general application and therefore limits the rights of individuals as guaranteed in the Constitution. It is thus important to note that Section 14 of the Regulations relating to the surveillance and the control of notifiable medical conditions issued by the Minister of Health in 2017 in terms of the National Health Act. requires the co-operation of certain individuals. These are individuals who carry the virus and those individuals who came into contact with individuals who carry the virus. These individuals are required to be tested, treated and isolated or even quarantined. Section 15 of the Regulations relating to the surveillance and the control of notifiable medical conditions furthermore authorises the head of a provincial health department to approach the High Court for an order to force a person to comply and undergo medical testing in circumstances where it is necessary.

Recently the South Gauteng High Court ordered a family that refused to be quarantined, to be quarantined after testing positive for the Covid19 virus.

In effect, this means that individuals cannot withhold their consent to be tested, treated, isolated and quarantined or refuse any measures aimed at preventing the spread of the virus. These individuals’ right to privacy and right of freedom of movement can therefore be limited and they can be forced to undergo testing.

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