Legality in a State of Disaster
1 April 2020
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: