On 15 March 2020, the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, declared a national state of disaster in South Africa. This, Dlamini-Zuma said, was done after considering the magnitude and severity of the COVID-19 outbreak which has been declared a global pandemic by the World Health Organisation (WHO).
She added that Mmaphaka Tau, head of the national disaster management centre, has also classified the COVID-19 pandemic as a national disaster.
The national state of disaster declaration was immediately followed by restrictions on certain activities and later resulted in a national lockdown. Dlamini-Zuma made the declaration under Section 27(1) and Section 27(2) of the Disaster Management Act, 2002.
Section 27 of the Disaster Management Act states, among other things:
A national state of disaster that has been declared in terms of subsection (1)
(a) lapses three months after it has been declared.
(b) maybe terminated by the Minister by notice in the Gazette before it lapses.
(c) maybe extended by the Minister by notice in the Gazette for one month at a time before it lapses.
This means the current national state of disaster is set to lapse on 15 June, which will leave the government with the option to end the state of disaster or extend it.
What will happen next
MyBroadband asked legal expert Daniel Pretorius, a partner at Bowmans, for feedback about issues related to the national state of disaster.
Pretorius confirmed that the national state of disaster is set to lapse on 15 June – three months after it was declared. When the national state of disaster lapses it means that the current alert level 3 lockdown regulations will no longer be in force.
“The regulations will only remain in force for as long as there is a state of disaster. If the state of disaster is not extended, the regulations will lapse,” said Pretorius.
What is likely to happen is that Minister Nkosazana Dlamini-Zuma will extend the state of disaster for one month at a time. Pretorius said there is no restriction on the number of times the Minister may extend the state of disaster. This means Dlamini-Zuma can extend the state of disaster, one month at a time, for as long as she deems it necessary to fight the COVID-19 pandemic.
There is also the option of the declaration of a new national state of disaster declaration for three months with a new set of regulations. The North Gauteng High Court recently declared the alert level 3 and alert level 4 lockdown regulations invalid and unconstitutional.
Judge Norman Davis ordered the Minister of Cooperative Governance and Traditional Affairs (COGTA), Nkosazana Dlamini-Zuma to review, amend, and re-publish the regulations. This must be done with due consideration to the limitation each regulation has on the rights guaranteed under the Bill of Rights.
Dlamini-Zuma has 14 business days to comply with the order to change the level 3 and level 4 lockdown regulations.What is significant is that the date on which the new regulations must be published is after the date on which the national state of disaster will lapse. Dlamini-Zuma will, therefore, have two main options is she wants to continue with the enforcement of the lockdown to fight the COVID-19 pandemic:
Extend the national state of disaster before it lapses and then review, amend, and re-publish the regulations within the 14-day period as per the court order.
Declare a new national state of disaster with a new set of regulations which will, unlike its predecessor, pass the rationality test. There is also the option of declaring a state of emergency, but this is also open to legal challenges and has a few restrictions.
The Daily Maverick’s Marianne Merten highlighted that a state of emergency is a 21-day measure that may be extended by Parliament for no more than three months at a time.
This extension also requires a 60% majority in the House from the second extension onwards, Merten said. The government may also appeal the High Court ruling in the hope of a more favourable ruling. Constitutional law expert Pierre de Vos said if the government appeals it will automatically suspend the judgement, which means the regulations will remain in place.
“On appeal, I think part or most of the judgement can be overturned because of the legal and technical manner in which the arguments were phrased,” he said. Cabinet spokesperson Phumla Williams said Cabinet will study the judgement and will make a statement afterwards.