April 21, 2020


South Africans live in a constitutional democracy which guarantees certain basic rights, including the right to freedom of movement and residence. These rights are not, however, absolute and are subject to limitations contained in section 36 of the Constitution. In terms of section 36, the rights contained in the Bill of Rights may be limited only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity,equality and freedom.

The nature of the Covid-19 pandemic has caused governments – both democratic and otherwise – to impose restrictions on freedoms which are normally taken for granted. South Africa is no exception and has declared a State of National Disaster in terms of the Disaster Management Act, 2002 and has accordingly gazetted various regulations to deal with this crisis. Included is a regulation which restricts the right of movement and provides that for the period of the lockdown (27 March 2020 until 16 April 2020) every person must be confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life-saving, or chronic medical attention.

Questions have arisen as to the meaning of 'confined to his or her place of residence' insofar as it relates to complex living,be it in a sectional title development or in a gated community. While ownership in a sectional title context refers both to the actual section and an undivided share in the common property, the question is whether one can simply apply this understanding to the words 'his or her place of residence' in the current circumstances.

In a broad sense, a residence may be interpreted to include both the dwelling and the shared amenities (including lawns,playgrounds, swimming pools, tennis courts, golf-courses, clubhouses etc.) which are located on the common property. In a narrow sense, it could be interpreted to refer only to the actual dwelling and not extend to the common shared facilities available to residents. Although no explicit guidance is given on the correct interpretation to be applied during the lockdown,understanding the purpose behind the restrictions is, in our view, key.

The purpose of confining citizens to their place of residence is to ensure social distancing in order to avoid the spread of Covid-19 and flatten the curve. The only stated exceptions apply to limited, unavoidable circumstances e.g. accessing essential services and dealing with medical emergencies. In our view, therefore, allowing the use of common shared amenities, even if managed on a roster or rotational basis,defeats the very purpose of the regulations.

By way of example, assume a complex with a swimming pool surrounded by tables with umbrellas and chairs imposes a roster for the use of this area. Family A use their time at the pool area and sit at the table and chairs. An asymptomatic member of Family A with Covid-19 unknowingly sheds the virus all over the tables and chairs during their allocated time. Family B then arrive for their swimming session and are infected with the virus. This scenario is exactly what the lockdown and the restrictive regulations are designed to prevent.

It is our considered view that the restrictions imposed prevent the use of common use areas and facilities and given this,'residence' is to be more narrowly interpreted.