Get more Mail & Guardian
Subscribe or Login

Corona and repatriation: What does the law say?

Experts agree that there is no lawful justification for refusing a citizen entry into South Africa, if they wish to return — “whether the citizen is ill with the Covid-19 virus or whether they have come into conflict with the law,” says Chrispin Phiri, the justice minister’s spokesperson.

“They are still entitled to the rights and privileges and benefits of all other citizens.” Phiri says that this is based on their citizenship rights under the Constitution.

However, this may be regulated by national legislation, provided it is constitutional, says international law expert Anton Katz SC.

Phiri agrees: “They must then comply with whatever measures are put in place to protect their fellow citizens from the Covid-19 virus.”

He says any quarantine law must be justifiable under the Constitution. In this case, the right to freedom of movement must be weighed against “the purpose of protecting others from the potential infection of a virus [that] has resulted in a pandemic”.

South Africa also has “consular protection” duties under the Vienna Convention on Consular Relations of 1963, say Katz and Phiri.

This convention has been incorporated into our law and says that protecting a country’s nationals falls within the functions of its consul. “Such protection may include assisting or repatriating those citizens [who] have become indigent, victims of crime, or assisting those who have become ill and need assistance in arranging their return to their country of citizenship. Of course, the proviso being that no local law is infringed,” says Phiri.

Consuls are widely regarded as being under an obligation to provide protection and assistance to their nationals, says Phiri.

“Nationals have a right to consular assistance and protection from missions, although it must be rendered and exercised within the confines of the domestic law and practice of the receiving state and subject to available resources.”

Katz agrees, but adds a caveat: the domestic law and practice of the host country must comply with an international minimum human rights standard. “If they do not, the South African government may have a constitutional obligation to come to the assistance of South African citizens whose international minimum rights are being violated.”

Subscribe to the M&G

Thanks for enjoying the Mail & Guardian, we’re proud of our 36 year history, throughout which we have delivered to readers the most important, unbiased stories in South Africa. Good journalism costs, though, and right from our very first edition we’ve relied on reader subscriptions to protect our independence.

Digital subscribers get access to all of our award-winning journalism, including premium features, as well as exclusive events, newsletters, webinars and the cryptic crossword. Click here to find out how to join them.

Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

Related stories

WELCOME TO YOUR M&G

If you’re reading this, you clearly have great taste

If you haven’t already, you can subscribe to the Mail & Guardian for less than the cost of a cup of coffee a week, and get more great reads.

Already a subscriber? Sign in here

Advertising

Subscribers only

Mbeki tells ANC that land without compensation goes against the...

‘This would be a very serious disincentive to investment,’ says Thabo Mbeki in a document arguing that the ANC should not proceed with the Constitutional amendment of section 25

Micro-hydropower lights up an Eastern Cape village

There is hidden potential for small hydropower plants in South Africa

More top stories

Abattoir compliance for game meat will kill Eastern Cape industry,...

Last month, the department of agriculture issued a notice saying that the slaughter and dressing of game meat at any place other than an abattoir was prohibited, and that those not complying could be fined or imprisoned

Gauteng health system is heading for catastrophe

While officials remain entangled in bureaucratic knots, clinicians warn that the continued closure of the Charlotte Maxeke Johannesburg Academic Hospital risks a ‘humanitarian disaster’

Entrepreneurship will save South Africa’s youth

Complaining about ‘reverse racism’ and BEE serves no one. South Africa’s white youth should focus on entrepreneurship instead

Union calls on government to nationalise ‘profit-driven’ Clover

The dairy’s Lichtenburg factory, which is being closed due to service delivery issues, employs about 380 permanent and 40 temporary workers
Advertising

press releases

Loading latest Press Releases…
×