The decision to declare a national State of Disaster came at Sunday’s Cabinet meeting that, Daily Maverick is told, also seriously considered a State of Emergency. Ultimately, it came down on the side of a national disaster declaration – and the public announcements of travel restrictions, visa bans and limiting the size of gatherings.

That a State of Emergency is not off the table emerged on Wednesday when Ramaphosa met the leaders of political parties represented in Parliament at his official Tuynhuys offices in the parliamentary precinct.

What is a national State of Disaster?

The 2002 Disaster Management Act facilitates co-ordination, mitigation and recovery following a disaster, defined as a “natural or human-caused occurrence that causes disease, damage to property infrastructure or the environment or disruption of the life of a community”.

In a national disaster, Section 26 of the act makes the national executive “primarily responsible” for co-ordinating measures for the mitigation, prevention and recovery and rehabilitation from disaster.  

Cabinet ministers may use existing legislation to deal with the disaster; health, immigration, transportation and other legislation allow ministerial directives.

But regulations, which are the responsibility of the co-operative governance minister, can provide for a range of further measures. However, crucially, the Disaster Management Act releases money and resources from vehicles to emergency personnel for the effort to deal with a declared disaster. 

How is a State of Disaster declared?

In terms of Section 27 of the Disaster Management Act, it’s the co-operative governance minister.

The president under Section 4(1) establishes, in the case of a national disaster declaration, an intergovernmental committee on disaster management to co-ordinate efforts. The president chairs this committee.

Section 27(2) allows the issuing of regulations that not only provide relief to affected persons, but also for the control in the affected areas of the movement of people and goods, the provision, use or control of emergency accommodation and the sale of alcohol.

A national State of Disaster lasts three months. However, the co-operative governance minister may cut it short at any time. A national State of Disaster may be extended one month at a time.

What is a State of Emergency?

In short, civil liberties, with exceptions like the rights to dignity and life, are suspended for anything from 21 days to three months, and possibly longer. Finish and klaar.

Unlike the apartheid decades, Section 37 of the Constitution and the 1997 State of Emergency Act provide a crucial supervisory role for Parliament. And the courts are constitutionally empowered to decide whether a State of Emergency or regulations are valid.

Meanwhile, Parliament is constitutionally prohibited from passing laws “indemnifying the state, or any person, in respect of any unlawful act”, as Section 37 of the Constitution also sets out the rights of detained persons, including being able to contact an adult relative or friend and be visited by medical and legal practitioners of the detainee’s choice.

How is a State of Emergency put in place?

Section 37 of the Constitution allows a State of Emergency to be declared only when

“(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and

“(b) the declaration is necessary to restore peace and order.”

In terms of the 1997 State of Emergency Act, the president makes this declaration. Parliament is informed of this and also of any regulations the president signed to empower any structure or person to perform duties, and also impose penalties.

Importantly, Parliament has to agree to those regulations in terms of Section 3(2) of the State of Emergency Act, which states Parliament may “disapprove” of any such regulations, while also making recommendations to the president.

In terms of Section 37(2) of the Constitution, 21 days is how long a State of Emergency may last – unless Parliament extends it, to a maximum of three months.

A simple majority of MPs is needed for this, but if there should be another extension of the State of Emergency, a parliamentary majority of 60% is required. And there must be a public debate.

The process on the Covid-19 State of Disaster so far?

On 15 March Co-operative Governance Minister Nkosazana Dlamini Zuma declared a national State of Disaster in Government Gazette 43096, citing the “magnitude and severity of the Covid-19 outbreak which has been declared a global pandemic…” and “the need to augment the existing measures undertaken by organs of state to deal with the pandemic”.

The same day, in an address to the nation Ramaphosa announced the declared national disaster following Sunday’s special Cabinet meeting:

“We have decided to take urgent and drastic measures to manage the disease, protect the people of our country and reduce the impact of the virus on our society and on our economy. We have now declared a national State of Disaster in terms of the Disaster Management Act,” said the president.

“This will enable us to have an integrated and co-ordinated disaster management mechanism that will focus on preventing and reducing the outbreak of this virus.”

On Monday 16 March several Cabinet ministers held an almost three-hour joint briefing, making the first pronouncements to flesh out the earlier presidential announcements such as the limitation of meetings to 100, travel restrictions, port of entry closures and the cancellation of government events.

Amid ministerial talk peppered with military analogies and mottos like “the war” on coronavirus, the National Command Centre was established.

On Tuesday 17 March this structure to co-ordinate action under the State of Disaster had its first meeting.

“The council received an update from the National Joint Operational and Intelligence Structure (NatJoints) on work being done in line with the directives outlined by the president to enhance border security and control, enforce public health containment measures and minimise local transmission,” said a Presidency statement.

“The NatJoints is the national co-ordination structure of the country’s security and law enforcement operations.”

On Wednesday 18 March, Ramaphosa met leaders of political parties represented at Parliament. After a more-than two-hour, seemingly cordial meeting, all were on board with government’s plans: all 14 political parties pledged their support for government’s measures and appealed to everyone to comply.

As DA interim leader John Steenhuisen urged everyone to remain calm and stop stockpiling – “Stop the panic buying. It is not necessary” – EFF leader Julius Malema said “This is not a time for profit”, calling on private health providers to make beds available and those selling masks and sanitisers not to hike prices.

So politicians are united, for once; what about the national State of Disaster regulations?

Defence is playing a major role in mobilising resources from people to aircraft platforms and vehicles, while also ensuring “the delivery of essential services as may be required to prevent, limit, contain, combat and manage the spread of Covid-19”, according to Regulation 2.

Public Works and Infrastructure must “identify and make available sites to be used as isolation and quarantine facilities as the need arises”, according to Regulation 5.

Regulation 4 provides for a warrant of arrest for a period of up to 90 days for anyone who refuses quarantine or admission to a medical facility, a medical examination that could include taking a bodily sample or “mandatory prophylaxis”.

Curiously, the regulation is phrased around the “refusal to consent to an enforcement officer” – that’s police, soldiers or peace officers like traffic officials and metro police – by a person “who has been clinically, or by a laboratory, confirmed as having Covid-19, or who is suspected of having contracted Covid-19, or who has been in contact with a person who is a carrier of Covid–19…”

Regulation 4 also states: “No person is entitled to compensation for any loss or damage arising out of any bona fide action or omission by an enforcement officer under this regulation”.

In broad sweep, the regulations are pulling together all the presidential and ministerial announcements, including the cancellation of visits to all types of correctional services facilities and the limitation of gatherings to 100.

New, however, is the limitation of 50 persons at places where alcohol is sold and/or consumed, like taverns, and an effective curfew on the sale of alcohol only between 9am to 6pm, or 1pm on Sundays or public holidays.

An enforcement officer may order the dispersal of gatherings above those numbers – and also arrest people.

A fine and/or six months’ imprisonment is possible for contravening the gathering restrictions and other movement limitations.

These penalties also apply to fake news, or the publication with the intention to deceive about Covid-19, the infection status of anyone or any measure taken by government to address the global pandemic.

“Any person who intentionally exposes another person to Covid-19 may be prosecuted for an offence, including assault, attempted murder or murder.”

And regulations for a State of Emergency?

Right now the basics for possible State of Emergency regulations is a draft put together in October 2017 by the South African National Defence Force (SANDF), as seen by Daily Maverick.

These allow soldiers, police and intelligence operatives to order anyone to leave a place, and to use the necessary force to do so if they believe it’s for the good of public safety. They can demand anyone to provide their names, addresses and “documentary proof of his or her identity”.

The security forces may on reasonable opinion detain someone or even arrest them without a warrant – and they may question any detained or arrested person.

In terms of those draft State of Emergency regulations, the president may “block any computer-related resources, communication or activity” in what is the strongest signal it would be possible to shut down the Internet.

These draft State of Emergency regulations would have to be tuned to what is a health-triggered emergency to, for example, include compulsory screening and testing and mandatory confinement to isolation areas which could be in hospitals, including military hospitals, or specially dedicated isolation sites.

Those are being worked on, even if it is a last resort, according to Justice Minister Ronald Lamola at Monday’s briefing by Cabinet ministers.

“We are putting all options on the table, to use all necessary means. The Department of Justice is drafting regulations if there is a need for a declaration of a State of Emergency,” Lamola said.

What happens next?

That depends.

If the State of Disaster measures are strictly adhered to, the contagion may well be contained. Although local transmission of Covid-19 has increased this week — the rate of confirmed cases doubles about every two-and-a-half days to 116 on Wednesday — that’s nowhere near the infection rates which has seen countries like Italy, France and others go into lockdown.

But compliance with the already announced measures is key to avoid the escalation of the national State of Disaster to a State of Emergency.

Wednesday’s meeting between Ramaphosa and leaders of political parties represented at Parliament made it clear a State of Emergency remains a real possibility. It’s understood the president has undertaken to regularly consult, and take along, those political party leaders.

After all, the national legislature has a crucial central role to play in any State of Emergency declaration in terms of legislation and the Constitution.

Ultimately, how it all shakes out will be up to the people of South Africa. In these times of Covid-19, radically changed behaviour is a must — from social distancing, hand washing and coughing hygiene to social solidarity. DM