Disaster v emergency – the differences in law, and the courts in a disaster

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In response to the COVID-19 pandemic the government imposed a draconian set of restrictions that are unprecedented in South Africa.

Only essential services workers had any semblance of freedom. All people were required to stay at home. Certain limited exceptions were made for the buying of food and visiting a doctor or pharmacy. Schools, businesses, sporting, religious and cultural events were shut down. And the police and army were given wide and extensive powers of arrest. A violation of the lockdown was a crime with penalties ranging from fines to imprisonment. These heavy measures were imposed after the government declared a national state of disaster on 15 March 2020.

The lockdown began on 27 March and was supposed to end on 17 April 2020. But the 17 April date was extended. According to the law a state of disaster automatically lapses after three months. So, the declared state of disaster lapsed on 14 June 2020. But after three months the government may extend the state of disaster for one month at a time. The government has extended the state of disaster to 15 July 2020. And there is no limit on the number of one month extensions that can be made by the government. The lockdown obviously violates numerous rights protected by the Bill of Rights contained in the Constitution. And parliament plays no role. It is the government that imposes restrictions in a state of disaster. Importantly the Constitution, the supreme law, is not suspended or over written by any disaster.

The Constitution remains in operation during a disaster. A disaster means a progressive or sudden, widespread or localised, natural or human caused occurrence which: (a) causes or threatens to cause — (i) death, injury or disease; (ii) damage to property, infrastructure or the environment; or (iii) significant disruption of the life of a community; and (b) is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.

Is a disaster the same as an emergency?

A state of emergency is a wholly different legal concept. An emergency is a notion contemplated in the Constitution. A state of emergency can only be declared where the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency and it is necessary to declare an emergency to restore peace and order. An important difference between a disaster and an emergency is that an emergency may last for no more than 21 days unless parliament extends it. And an extension may only occur after a public debate in parliament. There is a complex set of constitutional provisions dealing with the derogation of rights during an emergency. Some rights cannot be derogated at all during an emergency, while others can be derogated to a limited extent. For example the rights to dignity and life cannot be derogated at all, whereas the right to freedom of association can be.

Significantly, in both states of emergency and states of disaster the courts are in principle open. In the current state of disaster the courts have been open, but not to all cases. The courts have been open to, and heard many cases concerning different aspects of the lock down. There have been court challenges concerning attending funerals, the movement of children between parents and grandparents, the opening of a mosque for prayer, commercial issues around the sale of tobacco products, concerns about police and defence force brutality, immigration issues and the entire lockdown regime. Many regular disputes between parties have been delayed or postponed. Only urgent or semi-urgent matters can be enrolled, and it is the judges themselves who decide on what may be heard.

What is of particular interest is the nature of court hearings during the pandemic. Many, but not all courts, have not operated in open court, but rather via virtual platforms, such as Zoom or Microsoft teams. The appeal court in Bloemfontein has directed that all appeal hearings shall be virtual. A colleague suggested that her ‘Bloemfontein appeal’ went so smoothly and successfully on Zoom that she could not see a need to ever travel to Bloemfontein again. The virtual hearings I have participated in have all worked well.

A possible snag on occasion can be the quality of the home internet connection. And the kids at home (because school is closed) fail to understand that I was actually in court, although physically at home. But what is noticeable is that the hearings are more focused; the lawyers need to be prepared as well as, if not better than for open court hearings. The travelling to and from court is eliminated. So there is a saving of travel (plane, hotel and car) costs. There is a saving of the masses of paper that get eaten up at many court hearings. A colleague in a large shipping case ran a trial in which witnesses testifying in London and Paris were cross examined by the advocates based in Cape Town. It will take time, but eventually court matters will take a different course. Whether the different course will be better than the previous in-person hearings remains to be seen. By their very nature some matters do not lend themselves to virtual hearings. Examples are criminal matters and certain family cases, such as divorces or custody disputes.

Ultimately, emergencies and disasters require government to manage as best it can the dangers a disaster may bring. Difficult and hard choices need to be made. Constitutional rights may, and probably will have to be curtailed and violated. How far may the violations go? And the courts must be available to consider challenges to the government’s choices. And if the government can justify its choices on the basis of evidence and argument, then the courts must respect the choices made and the challenge must fail. But even in a disaster if the government takes action that cannot be and indeed is not justified then the challenge must succeed. The courts must be available in both emergencies and disasters to allow individuals to require the government to justify its conduct.

Anton Katz SC, a senior counsel practicing at the Cape Bar, was a member (2011-2018) of the UN Human Rights Council working group on mercenaries.

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