Elmien du Plessis breaks down the difference between a State of Emergency and State of Disaster and which one is better during a pandemic. 

With rumours of moving to Level 1, people have started asking me, "does that mean we will no longer be in a State of Emergency?" Well, no, but not for the reason that you think.

We will no longer be in a State of Emergency because we never were in a State of Emergency.

And then I realised, as lawyers we often assume that certain concepts are clear to other people too, only to realise it is probably confusing and intimidating, and even more so because it affects each one of us and might not be sure what is going on. Not to worry, the BBC also slipped up.

So, lets break down the difference between a State of Emergency (SOE) and a State of Disaster (SOD).

State of Emergency

A State of Emergency (SOE) has its legal authority in Section 37 of the Constitution, read with the State of Emergency Act of 1997. The president declares a State of Emergency in terms of these legal instruments.

The law allows that a SOE may be declared when: 

Once declared, the state may make emergency laws to deal with the emergency.

Section 37(4) states that: 

"Derogation" in law means "to modify or suspend" and is often used in a legal document to give the state power to temporarily suspend rights. This section then says, in plain English, that in a State of Emergency the state my temporary modify some of the rights in the Bill of Rights, but only in so far as it is needed to manage the emergency.

Also, importantly, certain rights may not be touched at all, such as equality, human dignity, life and a few others.

In terms of Section 37(2), a SOE is declared by publishing a proclamation (an official announcement made by the President) in the Government Gazette.

This declaration (in other words, the decision to declare an SOE), as well as all the legislation (including regulations), must be "laid upon the Table in Parliament by the President as soon as possible after the publication thereof".

In other words, it must be made public, and the National Assembly (Parliament as the legislature) may then give input in these regulations. The National Assembly can either disapprove of these laws or make a recommendation.

This SOE is valid for 21 days, but may be extended by voting on it in the National Assembly (Parliament). For the first three-month extension, 50+% must agree, while for the next extension(s), 60% must agree. There must be a public debate in Parliament on whether it must be extended or not.

An SOE was an option for the government, and but was regarded as a last resort.

Prof Pierre de Vos argued, and this is a difficult requirement to meet for Covid-19 for now, that it would be challenging to meet the requirement of "restoring peace and order". But he did contend that we have "an informal, light, version of a state of emergency".

Some countries did declare State of Emergencies.

Interestingly, a preliminary study shows that states tend to declare an SOE if this is done in the region, when the democracy is less robust or new and when there is a lower level of pandemic preparedness.

So, in South Africa, we did not follow this legal route in dealing with Covid-19. We opted for a State of Disaster.

State of Disaster

A State of Disaster (SOD) is governed by the Disaster Management Act of 2002. It does not have a specific section in the Constitution.

A disaster is defined in the Act as follows: 

A SOD is declared by the Minister of Co-operative Government and Traditional Affairs. In terms of the Disaster Management Act the executive is primarily responsible for the coordination and management of national disasters.

When a SOD is declared, then the minister may make laws to deal with the disaster (if there are no other existing laws to do so). Her powers are limited in that she may only make regulations (and other Ministers directives) that deals with a list of things in Section 27(2), and for the purposes set out in Section 27(3).

There is no specific oversight required from Parliament. Still, parliamentarians can (in theory, at least) keep the decisions makers accountable in the National Assembly or in Portfolio Committees.

The DMA has various institutions that must help with the management of a disaster. They are:

This is the option that the government choose.

We have been in a State of Disaster since 15 March, and this enabled government to make laws to manage Covid-19. I have explained elsewhere that, for these laws to still be valid, we must remain in a SOD, which means that even if we move to Level 1, we will still be in a SOD.

What the NCCC?

Apart from all these laws and institutions, the government elected to establish a "National Coronavirus Command Council" to help the executive make decisions. Initially only consisting of 19 ministers, it now includes the whole cabinet.

The NCCC was not established in terms of the Disaster Management Act. It does seem, however, as if this NCCC took over, or at least duplicates, some of the functions of the institutions in the Disaster Management Act. Since it is a committee of the cabinet the workings are confidential and not transparent, and it is unclear exactly what their terms of reference.

Was SOD the right choice?

We have never been in a State of Emergency under the Constitution. We also never had a pandemic (although we have the Aids epidemic). We have had a national State of Disaster. Before, and overlapping with Covid, drought was also a SOD, for instance.

It is difficult to say for certain if the SOD was the right choice.

I have made the argument that I think an SOE might have been better (for lockdown), and then to use existing legislation for the rest. But De Vos’ argument is solid.

Although one may be able to give Section 37 an interpretative massage to include a public health emergency, it is doubtful if the Courts would easily interfere with these choices.

Courts all over tend to show a greater amount of deference (i.e. respect for the decision with a reluctance to interfere) for the executive in emergencies.

Of course, you can also argue that Covid-19 is not a "disaster" and that neither a SOD nor SOE are needed, and that the National Health Act makes enough provision for managing the disease.

The bottom line is that this is the first time our democracy and Constitution is tested as far as emergency law-making is concerned. And as such, provide a fascinating new field for research and publication for law nerds like me, in the hope that if the next pandemic strikes, we will be better prepared.

- Elmien du Plessis is an Associate Professor in the faculty of Law at the University of the North West.