Analysis | Zeenat Kera
Any social situation, combined with opportunity, guarantees rebellion. With various economic, psychological and sociological factors at play, rebellion is inevitable. As much as lockdown encourages the elimination of social association, it is still very much a social movement, and so the ‘rebellious’ were going to show themselves. The government deployed the SANDF and the police to contain these individuals, however, many have still tried their luck to go against the national instruction to stay at home, whether for a good and justifiable reason or not. Co-operating individuals feel frustrated with these people, and so do members of the police. There have been numerous reports of brutal and forceful action by the South African police to contain these civilians, and such actions by the police include alleged murder. Now it is questioned whether such behaviour by the police is justifiable in desperate situations such as the one before us, namely that the spread of Covid-19 needs to be hindered so that society can resume to normality.
A state of disaster
A state of disaster has been called in terms of the Disaster Management Act 57 of 2002. One of the purposes of the Act is to provide for “an integrated and co-ordinated 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 and rehabilitation”. Ministers will publish regulations or directives to achieve these very objectives through their respective departments. However, this Act and any regulations or directives made in terms of this Act will no longer be applicable “if, and from the date on which, a state of emergency is declared to deal with that occurrence in terms of the State of Emergency Act 64 of 1997”. This section in itself shows that there is a clear distinction between a state of disaster and a state of emergency. The relevance of this to the conduct of members of the SAPS will be shown below.
A state of emergency
A state of emergency, unlike a state of disaster, was constitutionally regulated before the enactment of the State of Emergency Act 64 of 1997, which gives further effect to the constitutional provisions. Section 37 of the Constitution of the Republic of South Africa, 1996, states that “(1) A state of emergency may be declared only in terms of an Act of Parliament, and only when: (a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to restore peace and order.”
Further, the Constitution goes on to say under section 37(4) that “[a]ny legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that: (a) the derogation is strictly required by the emergency”.
The Disaster Management Act is not enacted to give effect to section 37. One can, therefore, assume that rights are not meant to be ‘derogated’ when a state of disaster is declared. The police’s brutal methods are, therefore, unjustifiable and lesser means to contain rebellious individuals should have been adopted, to avoid what President Ramaphosa described as “skop, skiet and donder”.
If a state of emergency is enforced, will the police then have the power to use drastically brutal measures?
The Constitution contains a table of non-derogable rights, which will be applicable to when a state of emergency is declared. Non-derogable means that these rights cannot be compromised or be taken away from civilians, regardless of the situation and circumstances at hand. Significantly, the right to human dignity and the right to life are entirely non-derogable. The right to freedom and security of the person is derogable only to the extent of section 12(1)(d) of the Constitution which states that persons have the right “not to be tortured in any way”; section 12(1)(e) which further states that persons have the right “not to be treated or punished in a cruel, inhuman or degrading way”; and section 12(2)(c) which states that persons are “not meant to be subjected to medical or scientific experiments without their informed consent”.
The relevant reported acts by the police were akin to the conduct warned against in sections 12(1)(e) and (d) and the conducts were also against the right to dignity and against the right against torture. Therefore, such behaviour is also prohibited under a state of emergency, which, in fact, is a state that is more severe and compelling than a state of disaster.
Don’t forget….
South Africa, at least judicially, holds the right to life and dignity with very high regard. This is seen in numerous landmark Constitutional Court judgments where certain principles pertaining to these rights were laid down. Some of these principles can be relatable and can be applied to general situations as well, such as the state of disaster which South Africa currently faces. Where there is a deviation from these notions in a situation that really does not compel violence, is reckless, irresponsible and perhaps rooted in personal bad blood.
Zeenat Kera holds a BA LLB from the University of Johannesburg and is currently pursuing her Masters in International Commercial Law. Kera is a senior law library assistant at UJ’s law library. @ZeenatKera.
Featured image from Google via Daily Maverick.
