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.”