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April 21, 2020

STATES OF EMERGENCY AND THE CONSTITUTION

In a historical announcement on 23 March 2020  flowing from Covid-19 reaching our shores, President Ramaphosa announced a  21-day lockdown to run from 27 March 2020 to 16 April 2020. Such an  unprecedented step was bound to be met with some defiance and already the  first application to the Constitutional Court challenging the lockdown has  been brought and dismissed.

In terms of the State of Emergency Act, 1997, read  with section 37 of the Constitution of the Republic of South Africa, 1996  (the “Constitution”), the President is empowered to declare a state of  emergency (“SOE”) only when "the life of the nation is  threatened by war, invasion, general insurrection, disorder, natural disaster  or other public emergency" and if ordinary laws and government  powers are insufficient to resolve the situation. The SOE may only apply for 21 days unless the National Assembly grants an extension, which may be for a  maximum of three months at a time.

As a result of the pronouncement, regulations have  been published under the Disaster Management Act, 2002 which include:

-                       restricting the movement of persons and goods,  except for specified essential goods;

-                       restricting retail shops to the sale of  specified essential goods only;

-                       mandating the closure of businesses and  entities, except for those involved in the manufacture of specified essential  goods or the supply thereof;

-                       the regulation of public transport;

-                       religious, cultural, entertainment, sporting  and recreational facilities are closed to the public;

-                       restricting gathering, including the number of  mourners at a funeral.

At first glance all of these restrictions are in  the first instance a limitation on constitutional rights that were hard  fought for. However, the Constitution also permits the limitation of rights  to the extent that the limitation is reasonable and justifiable in an open  and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right, the  importance of the purpose of the limitation and the nature and extent of the  limitation.

It is inevitable that the current measures are a  stark reminder of previous SOE’s under the apartheid regime: in those  instances, the SOE was used as means to crush violence and unrest, and to  detain political activists. The first SOE was declared on 30 March 1960,  resulting in 18 000 detentions. In addition, political parties in opposition  to the apartheid government were banned.

President PW Botha declared a SOE on 20 July 1985  in 36 of South Africa’s then 260 magisterial districts: the regulations  published under that SOE meant the banning of organisations and gatherings,  restriction of media coverage was restricted and detained people could not be  named. On 12 June 1986, the government declared its most severe SOE which  imposed curfews, restriction of political funerals, the banning of indoor  gatherings and media crews were not permitted to film political unrest. The  apartheid government used the SOE as a tool for its own ends: there was a  definite link between a SOE being declared and a surge in arrests, deaths in  detention and persons resorting to exile.

Just prior to the first democratic elections in  April 1994, on 31 March 1994, a SOE was declared in KwaZulu-Natal to address  the violence between IFP and ANC supporters.  The emergency regulations  promulgated at the time included the power to ban marches, detain people and  seize weapons.

Unlike the apartheid era, section 37 of the  Constitution and the State of Emergency Act, 1997 provide a vital controlling  role for Parliament, which cannot promulgate laws “indemnifying the state, or  any person, in respect of any unlawful act”. 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. Section 37 of the Constitution further provides  that any competent court may decide on the validity of a declaration of a  SOE, any extension of a declaration of a SOE or any legislation enacted, or  other action taken, in consequence of a declaration of a SOE.

Any legislation enacted in consequence of a  declaration of a SOE may derogate from the Bill of Rights only to the extent  that the derogation is strictly required by the emergency and the legislation  is consistent with the Republic’s obligations under international law applicable  to states of emergency.

While we may feel imprisoned in our homes and  restricted in terms of what we can and cannot do, our rights remain  entrenched in the Constitution.