Caging the Viper: COVID-19 and South African Law

By Simon David Dippenaar

The State President’s announcement of a state of national disaster to deal with the Corona Virus pandemic, on 15th March 2020, will allow extra-ordinary measures, such as the closure of ports of entry, primary and secondary schools and the prohibition on gatherings of more than one hundred people. In such a time of panic and hysteria, it is easy to overlook the fact that laws still apply, and civil rights are more likely to be threatened. This post considers the position should the government take the next logical step, and declare a national state of emergency.

In terms of Section 37(1) of our Bill of Rights, A State of Emergency may be declared only in terms of an Act of Parliament, and only when—

1. the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
2. the declaration is necessary to restore peace and order.

It is arguable that a global pandemic does indeed amount to a public emergency that threatens the life of the nation, however, this provides no guidance as to the shape such a state of emergency may take.

Draft State of Emergency Regulations have been in place since October 2017, compiled by the South African National Defence Force, and provide further insight.

These allow soldiers, police and intelligence operatives to order anyone to leave a place, and to use necessary force to compel same if they believe it is for the good of public safety. These operatives can demand anyone to provide their names, addresses and documentary proof of his or her identity. The security forces may on reasonable opinion detain someone or arrest a person without a warrant, and may question any detained or arrested person.

The President may block any computer-related resources, communication or activity. These would, no doubt, be tailored to meet the existing situation, but their utility in quarantining recalcitrant infected persons, in providing assistance to tracer teams and the removal of fear-mongers is more than apparent.

While I support giving the relevant persons as free a hand as possible, such powers can easily be abused in a panic. They also do not amount to free reign.

A State of Emergency may only last for 21 days, though may be extended, detention may be challenged in court, and the detained person released unless it is necessary to continue the detention to restore peace and order.

Any derogation from the Bill of Rights may only be one that is strictly required by the emergency, there may be no derogation from the rights to life and dignity, and only partial derogation from the rights to equality, freedom and security of the person, freedom from slavery, servitude and forced labour, the rights of the child, and the rights of arrested, detained and accused persons.

It is hoped that those dealing with the crisis will confine themselves to the parameters of the law, and these are suitable to deal with the pandemic.