Human Rights during a state of Emergency

The effect of a national disaster on human rights - The effect of the state of national disaster is to limit certain rights of all persons within the borders of South Africa as long as the limitation is justifiable in terms of the Constitution. It is therefore necessary to limit certain rights, e.g. the right to freedom of movement and residence to protect all persons. This amounts to a very careful balancing act in order to determine which rights should be limited for the greater good.

Written by Lydia le Roux, Legal Advisor, for LexisNexis South Africa.

[Durban, 15 April 2020]

The Bill of Rights

Our human rights are encapsulated in the Bill of Rights[1] which forms part of our Constitution[2], the highest law of our country. The Bill of Rights enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom[3] and is to be respected, protected, promoted and fulfilled by the state[4]. The Bill of Rights applies to all laws and binds the legislature, the executive, the judiciary and all organs of state[5]. Certain human rights are non-derogable rights. These are:

Table of Non-Derogable Rights[6]

Other human rights may, however, be limited[7] in terms of law of general application 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 —

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose[8].

State of emergency

The state may declare a state of emergency[9] only in terms of an Act of Parliament and only when —

(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and

(b) the declaration is necessary to restore peace and order^[10].

The state may only declare a state of emergency and any legislation enacted or other action taken in consequence of that declaration, may be effective only —

(a) prospectively; and

(b) for no more than 21 days from the date of the declaration,

unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly[11].

State of national disaster

There is, however, a difference between the declaration of a state of national disaster and a declaration of a state of emergency. A state of emergency is a radical limitation of human rights in terms of the State of Emergency Act[12].

The Disaster Management Act[13](“DMA”) on the other hand, regulates disasters and provides for:

• an integrated and co-ordinated disaster management policy that focuses on preventing or reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness, rapid and effective response to disasters and post-disaster recovery;
• the establishment of national, provincial and municipal disaster management centres;
• disaster management volunteers; and
• matters incidental thereto.

and also establishes a funding framework to respond to the disaster.

The DMA defines a “disaster” as:

“disaster” means a progressive or sudden, widespread or localised, natural or human-caused occurrence which-

(a) causes or threatens to cause-

(i) death, injury or disease;

(ii) damage to property, infrastructure or the environment; or

(iii) significant disruption of the life of a community; and

(b)        is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.[14]

The declaration of a national disaster means government determined that the medical emergency posed by the COVID-19 virus, precipitated special circumstances that warrant immediate action beyond what is provided for in existing legislation – to prevent and contain the threat of the virus to our healthcare system, economy and most importantly, the people within our borders[15].

Duration

The question then beckons: how long will a state of national disaster persist and may it be extended? The DMA indicates that:

“(5)       A national state of disaster that has been declared in terms of subsection (1)-

(a) lapses three months after it has been declared;

(b) may be terminated by the Minister by notice in the Gazette before it lapses in terms of paragraph (a); and

(c) may be extended by the Minister by notice in the Gazette for one month at a time before it lapses in terms of paragraph (a) or the existing extension is due to expire[16].”

Conclusion

President Cyril Ramaphosa declared a state of national disaster in terms of the DMA. The effect thereof is that certain rights of all persons within the borders of South Africa will be limited as long as this limitation is justifiable in terms of the Constitution[17]. It is therefore necessary to limit certain rights, e.g. the right to freedom of movement and residence[18] to protect all persons. This amounts to a very careful balancing act in order to determine which rights should be limited for the greater good.

[1] Chapter 2 of the Constitution

[2] Constitution of the Republic of South Africa, 1996

[3] Section 7(1) of the Constitution

[4] Section 7(2) of the Constitution

[5] Section 8(1) of the Constitution

[6] Section 37 of the Constitution

[7] Section 36 of the Constitution

[8] Section 36(1) of the Constitution

[9] Section 37 of the Constitution

[10] Section 37(1) of the Constitution

[11] Section 37(2) of the Constitution

[12] Act 64 of 1997

[13] Act 57 of 2002

[14] Section 1 of the DMA

[15] “What does a Covid-19 national state of disaster mean for rights?” published in City Press 21 March 2020

[16] Section 27(5) of the DMA

[17] Section 36 of the Constitution

[18] Section 21 of the Constitution