The authority to impose restrictions during a disaster may be found in section 27 of the Disaster Management Act 57 of 2002.

For ease of reference, I include a copy of section 27 below:

DISASTER MANAGEMENT ACT 57 OF 2002 (as amended)

27 Declaration of national state of disaster

(1) In the event of a national disaster, the Minister may, by notice in the Gazette,

declare a national state of disaster if –

(a) existing legislation and contingency arrangements do not adequately

provide for the national executive to deal effectively with the disaster; or

(b) other special circumstances warrant the declaration of a national state of disaster.

(2) If a national state of disaster has been declared in terms of subsection (1), the Minister may, subject to subsection (3), and after consulting the responsible Cabinet member, make regulations or issue directions or authorise the issue of directions concerning –

(a) the release of any available resources of the national government, including stores, equipment, vehicles and facilities;

(b) the release of personnel of a national organ of state for the rendering of emergency services;

(c) the implementation of all or any of the provisions of a national disaster management plan that are applicable in the circumstances;

(d) the evacuation to temporary shelters of all or part of the population from the disaster-stricken or threatened area if such action is necessary for the preservation of life;

(e) the regulation of traffic to, from or within the disaster-stricken or threatened area;

(f) the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area;

(g) the control and occupancy of premises in the disaster-stricken or threatened area;

(h) the provision, control or use of temporary emergency accommodation;

(i) the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area;

(j) the maintenance or installation of temporary lines of communication to, from or within the disaster area;

(k) the dissemination of information required for dealing with the disaster;

(l) emergency procurement procedures;

(m) the facilitation of response and post-disaster recovery and rehabilitation;

(n) other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster; or

(o) steps to facilitate international assistance.

(3) The powers referred to in subsection (2) may be exercised only to the extent that this is necessary for the purpose of –

(a) assisting and protecting the public;

(b) providing relief to the public;

(c) protecting property;

(d) preventing or combating disruption; or

(e) dealing with the destructive and other effects of the disaster.

(4) Regulations made in terms of subsection (2) may include regulations prescribing penalties for any contravention of the regulations.

(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.

A point on the rule of law requires mentioning. It deserves to be said that regulations based on section 27 (as most will inevitably be – indeed the regulations will have to say so) which purport to give authority that exceeds what is contemplated in the section (27), are invalid to the extent that they exceed the authority granted in the section. So, for instance, as to the making of making Umqombothi or home brew, the act provides as follows:

(2) If a national state of disaster has been declared in terms of subsection (1), the Minister may … make regulations or issue directions or authorise the issue of directions concerning –

(i) the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area

While there may be some argument about what amounts to dispensing – as to whether it is ‘dispensing’ to drink something one has made, or only if one gives it to another – the National Disaster Act (under 27(2)(i) does not permit the interference with the making of alcoholic beverages. Other law may – of which I am unaware – but the critical point is that the National Disaster Act does not.

Let me answer the question that may have crept into the mind of anyone seeking to dismiss this analysis – no, I have no particular personal interest in making or buying alcoholic beverages. In case it matters to anyone, my attitude is that I should drink a lot more – but time and family commitments don’t permit it.

To return to the topic – thus – as one may see from section 27(2)(i), there is no authority to restrict or otherwise interfere, through any purported regulations, with the making of these substances.

The example here is unimportant – it is the principle that is important. Any and all conduct by law enforcement officers must be based on authority in law.

In addition to this – what powers may be granted – the purpose for which the powers may be granted and exercised is also limited under subsection 27(3):

(3) The powers referred to in subsection (2) may be exercised only to the extent
that this is necessary for the purpose of –
(a) assisting and protecting the public;
(b) providing relief to the public;
(c) protecting property;
(d) preventing or combating disruption; or
(e) dealing with the destructive and other effects of the disaster.

Thus, even if a power is legitimately granted under a regulation, if it is granted for an improper purpose, it will be unlawful and invalid. Even if it is granted properly and for the proper purpose, but it is abused for an improper purpose, the conduct is unlawful.

There are already clear instances where there is an absence of all authority to act as some officers have. It is shameful and one may hope that once this is all over, those egregious violations are pursued.

However, even if regulations purport to authorise conduct, whereas the Act which permits the regulations, gives no authority for such regulations or conduct, the regulation is invalid and the conduct is unlawful. Furthermore, regulations or conduct committed for an improper purpose will, even if it would be lawful if performed for its proper purpose (per s 27(3)), be unlawful.

Once again, we must hope that as much as our society is constricted at the moment, it is doing so, one must imagine, with its consent. This is the time for law enforcement officials to shine as heroes – and there are many examples of this. But if the experience of the public turns to one of oppression, that consent will inevitably be withdrawn. This could lead to an uprising which will, in turn, require the resort to force by authorities. I hope no one wants that – COVID-19 would become insignificant.

James Grant

11 April 2020

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