Six days of violent protests and looting have left parts of KwaZulu-Natal and Gauteng decimated, which has led to increasing calls for the government and President Cyril Ramaphosa to declare a state of emergency in South Africa.
But what exactly would this mean for South Africans? Should we be in favour of this decision without understanding the implications of such a drastic step?
Advocate Wayne Pocock from the Maisels Group of Advocates explains that a state of emergency constitutes a huge limitation of human rights in terms of the State of Emergency Act.
“Our human rights are encapsulated in the Bill of Rights as per the Constitution of the Republic of South Africa being the highest law of our land. The Bill of Rights contains all the rights of all South Africans and affirms our democratic values such as, inter alia, human dignity, equality and freedom and such rights are to be respected, protected, promoted and fulfilled by the state (among many other tights).
“As the highest law of our Land, the Constitution of South Africa applies to all laws and is binding on the legislature, the executive, the judiciary and all organs of state. Certain human rights are inalienable such as equality, human dignity, life, freedom and security of the person etc.”
President Cyril Ramaphosa declared a national state of disaster on 15 March 2020 to combat the Covid-19 pandemic.
“The Disaster Management Act regulates disasters and provides for disaster management centres, volunteers, integrated and coordinated 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 period is normally 3 months but can be extended by the Minister on notice (as has been done to date since 27 March 2020).”
– Advocate Wayne Pocock, Maisels Group of Advocates
In terms of section 37 of the Constitution, a state of emergency may be declared 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”.
Speaking during a briefing by ministers in the Justice, Crime Prevention and Security (JCPS) cluster on Tuesday, Defence and Military Veterans Minister Nosiviwe Mapisa-Nqakula said she didn’t believe the rioting and looting warranted a state of emergency.
“If the time comes, informed by intelligence gathered and coordinated by the three entities [SAPS, Defence and State Security], the President will be advised and [only] then would he declare a state of emergency, if the need arises, based on that assessment report.”
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