Legality In A State Of Disaster

This brief is a companion to our recently published brief entitled ‘A guide to the duties imposed on South Africans during the lockdown’. That brief should be regarded as our Coronavirus Brief 1.

A degree of confusion is inevitable in a time of disaster. In order to minimize it, people need to know the new rights and duties legally assigned to them. We support all efforts by the government to communicate to the public, and our comments are intended to help it in its task. In this respect, we make the following observations:

1. Section 27(2) of the Disaster Management Act (‘Act’) empowers the responsible Minister (the Minister for Co-operative Governance and Traditional Affairs) to make regulations, to issue directions and to authorize the issue of directions. The Minister first issued regulations on 18 March (Government Gazette 43107, Notice 318). Section 10 empowers all Ministers to issue directions, within their mandates, to address, prevent and combat the spread of COVID-19, and gives specific additional powers to the Ministers of Health, Justice and Correctional Services, Basic and Higher Education, Police, Social Development, Trade and Industry and Transport. All regulations and directions are posted to the government’s Regulations and Guidelines – Coronavirus COVID-19 website (https://www.gov.za/coronavirus/guidelines). These regulations and guidelines are the authoritative statement of what the new law is. Verbal pronouncements by Ministers are not.

2. Sections 27(2) and (3) of the Act places limits on the regulations and directions which may be issued, and the Act itself and regulations and directions has to be consistent with the Constitution. This means that regulations and directions are subject to challenge in the courts. Moreover, actions taken by government may go beyond the scope of regulations and directions, to the harm of people on whom they impact. Clear directions about how and where objections to government actions can be lodged should be made available as soon as possible, and the government needs to ensure that its recipients of objections are adequately capacitated to deal with them and to communicate with objectors. These directions should be posted on the COVID-19 Coronavirus South African Resource Portal.

3. At the national level, there are three institutions dealing with disasters. In addition, the President as Head of State has powers to direct government activity on the coronavirus. The three institutions are:

· The Intergovernmental Committee on Disaster Management. This Committee is chaired by the responsible Minister and it comprises members of the Cabinet, MECs of each province and members of municipal councils. Its principal function is to co-ordinate disaster management between the tiers of government and report progress to the Cabinet.

· The National Disaster Management Centre, located in the responsible Department (the Department of Co-operative Government and Traditional Affairs, reporting to an appointed Head. It is the public service agency which promotes an integrated and co-ordinated system of disaster management. The Centre hosts a website at http://www.ndmc.gov.za.

· The National Disaster Management Advisory Forum, chaired by the Head of the Centre. It comprises representatives of national departments, MECs, municipal officials, and representatives of business, labour and civil society, and experts. It makes recommendations to the Intergovernmental Committee and can advise the state, non-governmental organizations and the private sector.

4. The Act requires a National Disaster Management Framework. This framework was gazetted in 2005, (Government Gazette 27534, Notice 654). A copy can be consulted at https://www.westerncape.gov.za/text/2013/July/sa-national-disaster-man-framework-2005.pdf

5. The government requires all website owners with a .za suffix to provide a link to the COVID-19 Coronavirus South African Resource Portal (at https://sacoronavirus.co.za). At the time of writing, this portal is poorly organized and does not provide links to the key websites indicated above. If the portal is to be the first point of contact, it needs urgent improvement. Better organization of the content it currently has is needed, as is a set of links designed to give people access to all important information hosted elsewhere.

We publish this brief as a second guide to the duties imposed on South Africans during the lockdown, also drawing attention to their rights. We hope that our recommendations about upgrading the Resource Portal are helpful to the managers of that site.

Charles Simkins
Head of Research
charles@hsf.org.za