On Sunday, 15 March 2020, the Minister of Co-Operative Governance and Traditional Affairs, Minister Nkosazana Dlamini-Zuma (the Minister), declared a national state of disaster in terms of s 27(1) of the Disaster Management Act, 2002 (the DMA) following the discovery of some 61 reportedly confirmed cases of COVID-19 (or Coronavirus) in the country.
That number has since climbed to more than 200. According to official department of health reports, the number stood at 240 by Saturday afternoon, 21 March 2020, less than a week after the President’s announcement of just 61 confirmed cases.
The Minister was presumably designated by the President in terms of s 3 of the DMA to declare a national state of disaster.
The President then addressed the country that evening on the issue. You may access the President’s full speech here.
Two days later, on 17 March 2020, the Minister issued Regulations in terms of s 27(2) of the Disaster Management Act, 2002. You may access those Regulations, under Government Gazette No. 43107 dated 18 March 2020, here.
In times of national crisis – like viral outbreaks or other natural disasters – governments have the power to pass laws without having to go through the usual consultation processes. This is one such moment. The Disaster Management Act confers upon a Minister designated by the President – in this instance the Minister of Co-Operative Governance and Traditional Affairs – the power to issue regulations in terms of that Act. These regulations are not suggestions. They are binding laws with serious consequences to those who deliberately disobey them.
As this is an unfolding crisis, it is not unreasonable to expect that government may have to introduce more regulations as the need arises, again without consultation.
It is on occasions like these that the judgment of the voter becomes truly tested, because the powers that a Minister may exercise in moments of crisis or disaster could be used as easily for the good of the nation by a politician with good intentions, as abused for nefarious purposes by a politician with bad intentions.
Here is my list of 20 things to note about these Regulations:
- Gatherings of more than 100 persons are prohibited [Reg 3(1) read with definition of ‘gathering’ in reg 1, the “Definitions” clause]. If you should convene a gathering of more than 100 persons you may be liable to a fine and/or imprisonment of up to 6 months on conviction [Reg 11(1)(a)]. Events like weddings, anniversaries, funerals, unveilings, commemorations, political rallies, protest marches, church gatherings, rugby matches and other sporting activities spring immediately to mind. Of course, this is not an exhaustive list.
- Gatherings of more than 50 people at premises where liquor is sold and consumed is prohibited [Reg 3(3)]. If you should permit more than 50 persons to purchase and consume liquor at your premises you may be liable to a fine and/or imprisonment of up to 6 months on conviction [Reg 11(1)(b)].
- There will be strict enforcement of these regulations, including dispersal of such gatherings, arrest and detention of offenders [Reg 3(2)]. Anyone who should interfere with or hinder or obstruct an enforcement officer (probably SAPS) in the performance of his or her duties may be liable to a fine and/or imprisonment of up to 6 months on conviction [Reg 11(1)(c)].
- Schools and “partial care facilities” have been closed with effect from 18 March 2020 until 15 April 2020 subject to further closure at the discretion of the Minister [Reg 6]. Any person who fails to comply with the schools closure decree will be guilty of an offence and may on conviction be liable to a fine and/or imprisonment for up to 6 months [Reg 11(2) & Reg 11(3)].
- All visits by members of the public to prisons, remand detention facilities, holding cells, military detention facilities, Department of Social Development facilities (including child and youth care centres, shelters, one stop centres, and treatment centres), are suspended for 30 days from 18 March 2020 subject to extension for any further period at the discretion of the Minister, but not beyond the duration of the national state of disaster [Reg 7]. Spare a thought for social grant recipients who collect their grants at community halls.
- Taverns, restaurants, clubs and any other premises that sell liquor for consumption at the premises must be closed with immediate effect [Reg 8(1)]. This regulation seems rather heavy-handed and irreconcilable with regulation 8(4) which prescribes business hours for premises selling liquor for on-site consumption. Perhaps possible confusion in this respect will be resolved soon.
- In the alternative, businesses that sell liquor for consumption at the premises are required to accommodate no more than 50 persons at any time, provided that adequate space is available and that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19, are adhered to [Reg 8(1)].
- All premises selling liquor which provide accommodation must implement measures to stop the spread of COVID-19, including making provision for adequate space, adherence to all directions in respect of hygienic conditions, and limitation of exposure to persons with COVID-19 [Reg 8(2)].
- No special liquor licenses or events liquor licenses may be considered for approval during the duration of the national state of disaster [Reg 8(3)].
- All restaurants, taverns, clubs and other premises selling liquor for consumption at the premises must be closed between 6pm and 9am the next morning on weekdays (Mondays to Saturdays) and from 1pm on Sundays and public holidays [Reg 8(4)].
- All premises selling liquor for consumption outside the premises (take-aways) must be closed between 6pm and 9am the next morning on weekdays (Mondays to Saturdays) and from 1pm on Sundays and public holidays [Reg 8(5)].
- No person who has been (1) clinically confirmed as having COVID-19, (2) or suspected of having contracted COVID-19, (3) or who has been in contact with a person who is a carrier of COVID–19, may refuse consent to an enforcement officer for submission to a medical examination, including the taking of any bodily sample by a person authorised in law to do so, admission to a health establishment or a quarantine or isolation site, or submission to mandatory prophylaxis, treatment, isolation or quarantine or isolation in order to prevent transmission of the virus [Reg 4(1)]. One imagines that disputes may arise as regards what constitutes reasonable suspicion, thus keeping some lawyers relative busy in the courts.
- If a person does not comply with the instruction or order of the enforcement officer, that person must be placed in isolation or quarantine for a period of 48 hours pending a warrant being issued by a magistrate, on application by an enforcement officer for medical examination [Proviso to Reg 4(1)]. But if such instruction is founded on a “suspicion” by an enforcement officer that a person has contracted the virus or has come into contact with a carrier of the virus, and the person denies this emphatically, this dispute may conceivably end up in urgent court.
- A warrant for medical examination may be issued by a magistrate, if it appears from information on oath or affirmation by an enforcement officer (1) that a person is confirmed as having been infected with COVID-19; (2) or that the person is on reasonable grounds suspected of having contracted COVID-19; (3) or that the person has been in contact with, or on reasonable grounds is suspected to have been in contact with a person who is a carrier or infected with COVID–19 [Reg 4(2)]. This may provide another fertile ground for urgent court litigation. Phrases like “if it appears … on reasonable grounds” are notorious litigation magnets.
- The warrant for medical examination may impose such restrictions on the powers of the enforcement officer as the magistrate may consider fit [Reg 4(3)].
- A warrant for medical examination remains in force until (1) it is executed; (2) or it is cancelled by the person who issued it or, if such person is not available, by any person with similar authority; (3) or the expiry of 90 days from the date of its issue; (4) or the purpose for the issuing of the warrant has lapsed, whichever occurs first [Reg 4(4)].
- No person is entitled to compensation for any loss or damage arising out of any action or omission by an enforcement officer done in good faith [Reg 4(5)]. So, if an enforcement officer in good faith detains a person on suspicion that the person has contracted the virus or has come into contact with a carrier of the virus, and the person subsequently shows that he or she has neither contracted the virus nor come into contact with a carrier, the state cannot be held liable for damages for, say, wrongful detention or medical examination. However, if the person can show that the enforcement officer acted in bad faith or that there was no reasonable basis for the suspicion that the person was a carrier or had come into contact with a carrier, then it would seem that this regulation may not assist the state.
- Any person who intentionally misrepresents that he, she or any other person is infected with COVID-19 is guilty of an offence and will on conviction be liable to a fine and/or to imprisonment for up to 6 months (Reg 11(4)].
- Spreading fake news about COVID-19 through any medium, including social media, with the intention to deceive constitutes a crime and on conviction may attract a fine and/or imprisonment for up to 6 months (Reg 11(5)]. Read that again. Pranks have no place in this crisis.
- Any person who intentionally exposes another person to COVID-19 may be prosecuted for an offence, including assault, attempted murder, or murder should the other person die [Reg 11(6)]. There must be intention to expose. Negligent exposure would seem not to be enough. But do you want to take a chance?
Latest updates on Covid-19 can be accessed from the website of the Department of Health here.
They may also be accessed through the website of the Department of Co-Operative Governance and Traditional Affairs here.
Everyone is urged to make every contribution in order to arrest the further spread of this Covid-19 virus. We should all keep ourselves informed and proceed with every caution in the face of this relatively new and developing challenge.