Big changes proposed for South Africa’s state of disaster and lockdown laws

Parliament’s Portfolio Committee on Cooperative Governance and Traditional Affairs (Cogta) has called for written comments on the Disaster Management Amendment Bill, which proposes a major shake-up for South Africa’s state of disaster regulations and by extension the country’s Covid-19 lockdown rules.

South Africa declared a national state of disaster under Section 27(1) and Section 27(2) of the Disaster Management Act on 15 March 2020 in response to the coronavirus pandemic.

While the state of disaster was originally set to lapse on 15 June 2020, the act provides that it can be extended by the Cooperative Governance and Traditional Affairs (Cogta) minister by notice in the gazette for one month at a time before it lapses.

The government has relied on the state of disaster to introduce and give effect to lockdown restrictions, which it has used to curb the spread of the Covid-19 pandemic.

However, it has also faced criticism for giving national government wide-ranging powers over the lives of citizens, with almost no limits, and little to no oversight from parliament.

The amendment bill acknowledges this issue and that the Disaster Management Act does not currently provide adequate legislative accountability and oversight over the regulations published in terms of it, the duration of a state of disaster, nor in respect of the extension of a state of disaster.

“In a constitutional democracy, any legislation, which has such severe consequences and which impacts all the citizens and their human rights, should be subject to more legislative accountability and oversight,” the memorandum of the bill states.

The key changes in the new bill include:

• A national state of disaster may be effective only ‘prospectively’ (going forward) and for no more than 21 days, unless the National Assembly resolves otherwise.

• A minister may terminate a national state of disaster before it lapses.

• A copy of the notice declaring a national state of disaster must be tabled in the National Assembly, and the National Assembly may disapprove of any regulations or directions made under such a declaration or may make recommendations to the Minister pertaining to such regulations and directions.

• Only the National Assembly, a provincial legislature or a municipal council may resolve to extend a declaration of a national, provincial or local state of disaster respectively and for how long.

• The Bill also provides for the requisite majorities required in the National Assembly, provincial legislature and municipal council to extend a national, provincial or local state of disaster, respectively.

• A resolution to extend a national, provincial or local state of disaster may only be adopted after a public debate.

While the proposed changes would introduce the many changes critics of the current state of disaster have been calling for, it are still a very long way away from becoming law – and will likely face opposition along the way.

The amendments were introduced by the Freedom Front Plus, a minority party, and is at the very start of the process. The amendments will have to work their way through the portfolio committee, National Assembly, select committees, and the National Council of Provinces before being sent to the president for assent.

Comments and public participation processes will also take place, with the opportunity to have the proposals challenged at every step.

If the amendments are not supported by the ANC, which holds a majority in parliament, the changes are unlikely to be passed.

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