The main difference between a state of emergency and a state of disaster is that certain protections afforded by the Bill of Rights can be suspended in a state of emergency.
According to Webber Wentzel partner Michael Evans, the major right that the president may suspend is that people can be detained without trial. However, this would be subject to many restrictions.
Section 37 of the Constitution contains a table that sets out which rights in the Bill of Rights are non-derogable.
“The implication is that all other rights can be derogated,” Evans stated.
Thus, for example, the president can restrict freedom of movement, freedom of trade, and freedom of association under the state of emergency. Still, the rights to equality, human dignity and life cannot be derogated.
Suspending the right of no detainment without trial would enable authorities to arrest and detain people on a large scale, as happened during the states of emergency under apartheid, Evans said.
However, a state of emergency under democratic South Africa would look very different from one under Apartheid-era laws.
“South Africa has not had a state of emergency since the apartheid era. Lessons learnt from that period are not particularly helpful in the current situation for a range of reasons, the most important being that any new state of emergency is now governed by our Constitution,” Evans stated.
Evans said that the legislation regarding states of emergency in South Africa is extremely scant.
“They are governed by section 37 of the Constitution and by the State of Emergency Act, No 64 of 1977 (the Act). No regulations have been promulgated in terms of the Act,” he explained.
In terms of section 37(2) of the Constitution, the president can only declare a state of emergency for a period of 21 days from the date of declaration unless the National Assembly (Parliament) resolves to extend the declaration.
The National Assembly may extend the declaration of a state of emergency for no more than three months at a time.
The first extension of a state of emergency must be by a resolution adopted with the supporting vote of a majority of the members of the Assembly.
Any subsequent extension must be by resolution adopted with the supporting vote of at least 60% of the members of the Assembly.
“Unlike a state of disaster, a state of emergency is more closely supervised by Parliament,” Evans said.
“In terms of section 3 of the Act, Parliament has the responsibility to supervise any regulation, order, rule or by-law made in pursuance of any such declaration of a state of emergency.”
States of emergency can be declared nationally or within any area of the country, so it would be possible for President Cyril Ramaphosa to declare a state of emergency in KwaZulu-Natal alone.
Evans explained that a state of emergency alone would not grant the military extraordinary powers, as it is up to the president, or the people he delegates to, to publish regulations or give orders in terms of published regulations that give the military its powers.
“It is impossible to say at this stage what rights the military will have,” said Evans.