Fake news and misinformation is at an all time high during this turbulent and uncertain period of our young democracy.
I have received many messages from community members and friends afar concerning posts on social media that are clearly intended to place “the fear of God” in you by spreading false information about the law and what it means. In particular, the law around a “State of Emergency”.
This short blog is intended to clear up the noise and lay down the actual law (so to speak).
What is an emergency situation?
A State of Emergency is regulated by the State of Emergency Act, 1997 (not the Disaster Management Act currently in place for COVID-19). The introduction of this law provides some examples of events that could result in the need to declare a State of Emergency. The law considers these events as “threats to the life of the nation.” The examples listed are:
- war,
- invasion,
- general insurrection,
- disorder,
- natural disaster; or
- other public emergency.
This is not a closed-list of events. There will certainly be others that will be considered as “threats to the life of the nation”. In simple terms, any exceptional situation of crisis or emergency affecting the whole or part of a nation that threatens the organised life of a community could be recognised as an emergency. [1]
If any of these events occur, it will only be lawful to declare a State of Emergency if it is strictly necessary to restore peace and order. In other words, if normal/existing measures or restrictions will be inadequate to respond to the emergency.
The President has the power to declare a State of Emergency with immediate effect and for a period of 21 days. Any extensions must be approved by Parliament.
Should any person challenge the lawfulness of a decision to declare a State of Emergency, our Courts will indeed still be able to decide on it.[2]
Your rights during a State of Emergency
The boundaries of a State of Emergency are described in section 37(4) and (5) of the Constitution. Certain laws can be suspended and certain human rights can be limited. These rights include the right to freedom of movement (i.e. lockdowns), education (schools), and other socio-economic rights. However, there are special human rights which cannot be limited. These are called non-derogable rights and include:[3]
- right to equality, human dignity and life.
- right to a fair (but potentially delayed) trial, and to challenge the lawfulness of your detention before a court.
- right not be subject to slavery, forced labour, or torture.
- right not to be punished in a cruel or degrading way.
- right not to be subject to medical or scientific experiments.
- certain children’s rights such as protection against abuse and neglect.
Importantly, any limitation of any human rights must be strictly needed to respond to and address the emergency. It is certainly not a “free-for-all” scenario. There must at least be a rational connection to the emergency response.
Who will be in power during a State of Emergency?
No, the President will not be “stripped of his powers”, nor will power be handed over automatically to the military or any particular minister. The President declares the State of Emergency and remains in the driver’s seat by issuing emergency regulations in terms of section 2(1) of the State of Emergency Act.
The President may choose to issue emergency regulations that authorise other persons or bodies to make orders, rules and by-laws as well as penalties for contravening them. In other words, he can choose (but is not obliged) to delegate limited powers to any ministers or government bodies. However, emergency regulations issued by the President (or his chosen delegates) cannot relate whatsoever to Parliamentary powers.
This is because Parliament plays a vital role of acting as the supervisor, keeping the President under tight control. Parliament has the power to disapprove and make recommendations on any emergency regulation issued by the President (or his chosen delegates).[4] Remember that any person can challenge, in court, the State of Emergency or any regulation issued in terms of it.
Is it desirable?
The circumstances we find ourselves in as South Africans is concerning and unprecedented as a democracy. Limiting human rights in general is not something to consider lightly. Whether a State of Emergency is desirable largely depends on whether it is actually needed to restore order and peace. To answer this question, we must ask if we are able to restore matters using normal/existing measures or restrictions? However, in order to do so, we probably need to put more effort into finding out (with certainty) what the root causes beneath the recent events are.
“My fellow South Africans”, please do take care of yourselves and your communities. We have seen the best in each other during these trying times and will always be stronger together.
A special thank you to my good friend & colleague Kate Burrows for collaborating on this piece.
– Mitch
**The information contained in this article is provided for informational purposes only, and should not be construed as legal advice or a legal opinion on any subject matter. You should not act or refrain from acting on the basis of any content included in this article without seeking legal or other professional advice
[1] Guide on Article 15 on the European Convention of Human Rights gives a sense of what the international community considers as threats to the life of a nation.
[2] Section 37(3) of the Constitution of the Republic of South Africa, 1996.
[3] Section 37(5) of the Constitution of the Republic of South Africa, 1996.
[4] Section 3 and 4 of the State of Emergency Act, 1997.
