Yesterday evening, March 25th, President Cyril Ramaphosa addressed the South African nation regarding the COVID-19 (Coronavirus) pandemic currently plaguing the world over and South Africa specifically, where there’s already a confirmed 61 cases. In the address, the President formally declared COVID-19 a National Disaster in terms of the Disaster Management Act No. 57 of 2002 (the Act) and implemented a number of measures and protocols aimed at prevention and mitigation of the spread of the disease. This declaration comes with the full weight of the Act, the powers imbued, and duties imposed on relevant bodies by it.
According to the Act, there are 3 levels of disaster declaration – national, provincial, and municipal – which come with their own powers and obligations. The President declared the disaster on a national scale, following the definition given under section 23(6), triggering the provisions of chapter 3 of the Act. This chapter imbues the relevant bodies with great powers and abilities after the declaration of a national disaster. The chapter is also riddled with the use of “must” over “may.” This means that majority of the provisions in this chapter are imperative, they impose a number of duties on relevant bodies to do things aimed towards mitigation and prevention of the spread of a national disaster, as opposed to the possibility of “may.” These “must” obligations go towards fettering the power and discretion bestowed by the Act.
According to section 4 of the Act, the President must establish an Intergovernmental Committee on Disaster Management consisting of, among others, Cabinet members involved in disaster management, Members of the Executive Council, as well as a designated Minister or Department which shall head the Intergovernmental Committee. Under section 5, the Minister, as head of the Committee, must establish a National Disaster Management Advisory Forum (the NDMA Forum) consisting of, among others, the Head of the National Centre, a senior representative of each national department whose Minister is a member of the Intergovernmental Committee, and representatives of other disaster management “role-players” designated by the Minister.
The Intergovernmental Committee is responsible for giving effect to the relevant Constitutional principles (co-operative government under Chapter 3 of the Constitution), being accountable to Cabinet and the public, reporting to Cabinet on co-ordination of disaster, and advise and make recommendations to Cabinet on issues relating to disaster management. The NDMA Forum acts as the go-between between public stakeholders in disaster management and the Committee. Their function is to be the body in which national and provincial “role-players” consult one another and co-ordinate actions towards mitigation and management of the national disaster. This, in effect, is the boiler room of the Government’s powers and duties after the Act is invoked.
In terms of powers, sections 14, 15(1) and (2), 18, 25, and 27(2) give the NDMA Forum and National Centre and it’s Head the power to:
1. Monitor organs of state to determine compliance with the Act and the national disaster management framework, and monitor progress regarding recovery and rehabilitation;
2. Act as the keeper and disseminator of information concerning national disasters, management, prevention, mitigation, framework, etc.;
3. Make recommendations, initiate, and facilitate efforts regarding the appropriation of funds relating to disaster management and the making of such funding available;
4. Promote the recruitment, training, and participation of volunteers in disaster management;
5. Assist in the implementation of legislation;
6. Engage in any lawful activity aimed at promoting the effective exercise of its powers or the effective performance of its duties;
7. Exchange information relevant to disaster management and request any organ of state or person in possession of information reasonably required by the National Centre to provide such information. They also have the power to report the failure to the Minister, who must take such steps as may be necessary to secure compliance with the request, including reporting the failure to Parliament;
8. Prepare a disaster management plan;
9. Make regulations pertaining to: 1) release of any available resources of the national government, 2) release of personnel of a national organ of state to render emergency services (an almost diluted for or conscription), 3) implementation of provisions of a national disaster management plan as applicable, 4) evacuation to temporary shelters of all or part of the population if such is necessary for the preservation of life, 5) regulation of traffic, 6) regulation of the movement of persons and goods, 7) provision, control, or use of temporary emergency accommodation, 8) the suspension or limiting of the sale, dispensing or transportation of alcohol, 8) maintenance or installation of temporary lines of communication, 9) dissemination of information, 10) emergency procurement procedures, 11) facilitation of response and post-disaster recovery and rehabilitation, 12) other steps that may be necessary to prevent an escalation of the disaster or to alleviate, contain, and minimise the effects, 13) steps to facilitate international assistance;
10. Extend a national state of disaster beyond 3 months, or terminate it earlier than 3 months;
11. Delegate any of these powers to a designate; and
12. Exercise any other powers conferred on it in terms of the Act.
More or less, the National Centre, Intergovernmental Committee, and respective Heads can do anything required or necessary to manage the declared state of disaster. These powers are bolstered by section 60 which makes it a criminal offence to fail to comply with the National Centre’s request for information under section 18(1) and punishable by an unspecified fine, imprisonment for up to 6 months, or both.
As stated above, these powers, vast as they may be, are not unfettered. The Act also provides for a number of congruent obligations and limitations to prevent an excessive use of powers conferred. These include: 1) limitation of powers to exercise within national disaster management framework and with the direction of the Minister; 2) exercise of power in line with the statutory objective to promote an integrated and co-ordinated system of disaster management, with special emphasis on prevention and mitigation by national, provincial and municipal organs of state; 3) establishing effective communication links; 4) providing an array of obligations to the public and the relevant state bodies as a matter of checks and balances (sections 16, 17, 19, 20(1), 21, 23(1), 27(3), and 27(5)).
As of yesterday, the President implemented a number of measures however we should be expecting a Gazette publication of the National Framework going into further details. In short, as from the President’s speech, the measures in place currently, or to be implemented by March 18th as specified are;
1. National state of disaster declared. Rapid effective response system;
2. Limit contact with infected;
3. Travel ban on foreigners from high risk countries as of 18th March. Visas cancelled;
4. South African residents to avoid travel to high risk countries;
5. Travel alerts will be issued based in risk level;
6. Citizens returning from high risk areas should self-quarantine;
7. Those returning from medium risk country travel to be subjected to testing;
8. 35 of the 72 ports of entry into South Arica are to be shut down including 2 sea ports;
9. Non-essential domestic travel is discouraged;
10. Gathering of more than 100 people is prohibited;
11. Small gathering organizer must have a plan in place;
12. Schools to close from March 18th until after Easter holidays;
13. Tertiary institutions to be consulted;
14. All businesses to ensure they intensify measure regarding hygiene control;
15. Shopping malls to ensure hygiene control measures;
16. Increased capacity of hospitals;
17. Improved monitoring system;
18. Mass campaign to educate;
18. Minimize physical contact;
19. Funding available to reinforce the systems introduced;
20. National Command Council to meet 3 x per week.
