ABSTRACT
As a deeply unequal society with a poorly-resourced public health system and a significant tuberculosis and HIV infection burden, the South African government’s response to the COVID-19 pandemic has been the focus of close scrutiny. Opting for a state of national disaster instead of a state of emergency, the government promulgated a series of restrictions linked to a five-tiered risk adjusted strategy aimed at limiting the spread of the virus. The rationality of the government’s approach of opting for ministerial expert advisory committees and limiting Parliament’s oversight role in managing the disaster were contested in a series of legal challenges. This demonstrated the need for clear, justifiable and reasonable decisions, as well as the vital role of courts in protecting against potentially arbitrary decisions and providing for accountability mechanisms. The government’s negative response to experts’ criticism of its handling of the pandemic fails to recognise the importance of public debate in a functioning democracy and particularly during a public health crisis. With courts remaining the only check on decisions being made, it has become clear that Parliament should play a role in decision-making during this and future pandemics.
