Covid 19 – What next?

• South Africa

• Technology, Media and Telecoms

14-04-2020

In light of the recent two-week extension of the lockdown, there is a lot of uncertainty regarding what may possibly transpire at the end of the lockdown period. There is also uncertainty regarding the extent of the Government’s powers, in respect of both individuals and businesses, during these turbulent times.

We set out below the possible next steps which the Government may take and the powers afforded to the Government under both the Disaster Management Act 57 of 2002 (“Disaster Management Act”) and the State of Emergency Act 64 of 1997 (“State of Emergency Act”).

After the lockdown

The 21-day nationwide lockdown, which was set to come to an end at midnight, on 16 April 2020, has been extended for a further two weeks. The President announced that there would be certain exemptions granted in order to assist the economy. However, there has not yet been any announcements in this regard. Either the lockdown will automatically lapse at the end of April, or the government may order that the lockdown be extended once again or implement different restrictions in South Africa. Given the current state of the Covid-19 situation in South Africa, it is unlikely that it will be business as usual from 1 May 2020.

Government powers under the Disaster Management Act

Section 27 of the Disaster Management Act provides for the declaration of a national state of disaster. Such declaration automatically lapses after three months unless the Minister terminates it before then or extends it for a further month by way of notice in the Government Gazette.

Section 27 further provides ministers with wide powers to make regulations or issue directives concerning:

• “the control and occupancy of premises in the disaster stricken or threatened area; and

• other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster”.

These powers are very broad and, accordingly, the Government could potentially seize PPE, property, and networks, from the private sector. However, these powers may only be exercised to the extent that this is necessary for the purpose of:

• assisting and protecting the public;

• providing relief to the public;

• protecting property;

• preventing or combating disruption; or

• dealing with the destructive and other effects of the disaster.

Currently, the government has not issued regulations that authorise the seizure of PPE, property, or networks.

Government Powers under the State of Emergency Act

The State of Emergency Act provides the President with wide powers to declare a state of emergency in the Republic or any area of the Republic. Such a declaration may only be made when:

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

• the declaration is necessary to restore peace and order.

In such event, emergency regulations as are necessary or expedient to restore peace and order will be drafted. These emergency regulations would most likely be broader and more restrictive on the nation than the current, and any future, regulations under the Disaster Management Act. A state of emergency may only last for a period of 21 days, unless the National Assembly extends it for three months at a time.

Although some rights, such as the rights to human dignity and life, may not be suspended or relaxed, the Constitution does allow for the derogation of certain rights contained in the Bill of Rights, in certain circumstances. This means, for example, that the constitutionally protected right not to have your property expropriated without compensation may be suspended. In such an event, the government may be authorised to seize property from the private sector. The main difference between a state of emergency and a national disaster is that certain rights contained in the Bill of Rights may be suspended under a state of emergency, whereas under a national disaster they are not.

Although a state of emergency has not yet been declared, Justice Minister Ronald Lamola declared that state of emergency regulations are being worked on, in the event that there is a need for a state of emergency to be declared.

Conclusion

Unfortunately, as has been the case since the initial announcement by the President, and with each new announcement and set of Regulations, the nation is in the dark, and the best that you can do is ensure that you are able to quickly and efficiently comply with any new Regulations, as and when they are published.

Please contact us if you would like us to advise whether your business is compliant with the Regulations.

The above does not constitute legal advice, but rather advice of general application which may change depending on the facts and circumstances of a particular case. Independent legal advice should be obtained before implementing any measure which may impact upon rights and obligations.