The laws, powers and role-players underlying a lockdown
Updated: Sep 8, 2020
Author: Sarah Goldman – Candidate Attorney
* Article supervised by Candice Pillay – Director
The COVID-19 pandemic was declared a national disaster on the 15th of March 2020 by notice in the Government Gazette. This declaration has brought into effect the provisions of the Disaster Management Act 57/2002 (The DMA), a piece of legislation which permits the creation of regulations which have far-reaching implications and which bring about significant limitations to civil liberties.
As we enter the second week of the national lockdown, this article considers the legislative scheme which has guided the process to date.
For the provisions of the DMA to be brought into effect, the occurrence must constitute a disaster. The evaluation of what constitutes a disaster is guided by the DMA itself, and within the context of the COVID-19 pandemic, it means a sudden, widespread natural or human-caused occurrence which causes or threatens to cause death, injury or disease and is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.*
The provisions of the DMA will not apply in instances where the disaster is being dealt with as a state of emergency in terms of the State of Emergency Act 64/1997 or alternatively where other national legislation exists which can effectively deal with the occurrence and which is aimed at reducing the risk and addressing the consequences of occurrences of that nature.
No state of emergency has been declared in South Africa and the applicability of other national legislation would be dependent on that legislation’s effectiveness to deal with a particular occurrence. The assessment of effectiveness would be a matter left to the discretion of the National Disaster Management Centre (NDMC), a structure established in terms of S8 of the DMA.
The President is responsible for designating a Minister to execute and carry out the provisions of the DMA and Dr Nkosazana Dlamini Zuma, Minister of Cooperative Governance and Traditional Affairs, was designated. Dr Dlamini Zuma is also responsible for the overall governance of the NDMC.
In the event that the NDMC establishes that an occurrence constitutes a disaster and that there is no effective legislation to deal with the disaster, the NDMC is required to determine whether to classify the disaster as a local, provincial or national disaster.
On the 15th of March 2020, Dr Mmaphaka Tau, head of the NDMC, gave notice in terms of S23(1)(b) of the DMA, that the COVID-19 pandemic would be classified as a national disaster.** S23(6) states that a disaster is a national disaster in instances where it affects more than one province or alternatively where a single province is unable to deal with the disaster effectively.
The notice stated further that the primary responsibility to coordinate and manage the disaster would be designated to the National Executive. This confirmation of responsibility is in line with S26(1) of the DMA which states that the National Executive is primarily responsible for the coordination and management of national disasters and that this will be the case irrespective of whether or not a national state of disaster has been declared.
In addition, S26(2)(b) of the DMA requires the National Executive to deal with the disaster in terms of existing legislation. In instances where the disaster has been declared a national disaster, the National Executive is to deal with the disaster in terms of the contingency arrangements as augmented by regulations or directions made or issued in terms of S27(2) of the DMA.
The implication of S26(2)(b) of the DMA is that the National Executive, including the President as head of the National Executive, are bound by the provisions of the DMA together with the regulations made in terms of S27(2). The power to make these binding regulations falls on Dr Dlamini Zuma
The nature of the regulations she is permitted to make are expressly stipulated in S27(2)(a) to (o) of the Act and include the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area and other steps that may be necessary to prevent an escalation of the disaster or to alleviate, contain and minimise the effects of the disaster.
While the DMA does not expressly make provision for a lockdown, it does envisage the creation of regulations to restrict the movement of persons for the purposes of containing and minimising the effects of a disaster. The announcement of the national lockdown was made but the President on Monday 23 March 2020. But it was not this announcement that gave the lockdown credence or brought it into effect. On the 25th of March 2020, Dr Dlamini Zuma published regulations by notice in the Government Gazette which confirmed the lockdown and the period for which the restrictions would apply.***
When the President announced the lockdown he did not assume any of the powers conferred on Dr Dlamini Zuma by S27(2) of the DMA, but instead acted as Head of the National Executive in terms of S26(1) to co-ordinate and manage the national disaster; a responsibility which vests in the National Executive irrespective of whether a national state of disaster has been declared.
Dr Dlamini Zuma remains as the person in charge of formulating the disaster management plan for Covid 19 and the lockdown.
* The Disaster Management Act: S1. ** Notice 312, Government Gazette No. 43096, 15 March 2020. *** Notice 398, Government Gazette No. 43148, 25 March 2020.
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