Sakeliga’s lawyers have issued a letter of demand for the mandatory end to the ‘national state of disaster’.
In the letter, we demand that the National Disaster Management Centre’s (NDMC) Head of Centre, Dr Mmaphaka Tau reassess and rescind his classification of COVID-19 as a ‘national disaster’ by 28 January 2022. The ‘national state of disaster’ was promulgated nearly two years ago in March 2020 based upon this classification, issued by the NDMC under section 23 of the Disaster Management Act (DMA). Should the classification fall away, the Minister of Co-operative Governance and Traditional Affairs (COGTA) will be obligated to withdraw her declaration of a ‘national state of disaster’ and be unable to renew it.
Failing reassessment and recission of the initial classification by 28 January, Sakeliga will seek to compel the Head of Centre to reassess under section 23 of the DMA and will consider seeking urgent relief under section 172 of the Constitution of South Africa.*
Sakeliga undertakes this action to ensure a return to normality in the commercial and social sphere, which requires removing government’s ability to issue and amend arbitrary regulations at a moment’s notice. Removing the ‘state of disaster’ is crucial for recovering employment for the more than a million people rendered jobless by government’s lockdown policies, ensuring an immediate rebound in tourism, and countering escalating instability in South Africa.
Whatever the considerations leading to the initial classification by the Head of Centre in March 2020, the severity and magnitude of COVID-19 does not today warrant classification as a ‘national disaster’. Yet, as though nothing has changed in nearly two years, the ‘national state of disaster’ remains in place. Sakeliga cannot allow continued and unfettered extension of a purported ‘national state of disaster’ to go unchallenged where the facts of COVID-19 clearly indicate no such classification is warranted.
The DMA places a duty on the NDMC’s Head of Centre to continuously consider and assess ‘disasters’ facing the country. Section 23(7) of the DMA makes it clear that a situation may only be deemed a ‘provincial’ or ‘national’ disaster if supported by classification as such by the NDMC. Failing a comprehensive and properly justified and objective classification of circumstances as an actual ‘disaster’, national intervention on that basis is unlawful. Indeed, classification as a ‘national disaster’ under section 23(7) is a prerequisite for a declaration or extension of a ‘national state of disaster’ under section 27(1).
Notwithstanding the DMA, the NDMC’s Head of Centre also has a constitutional duty to prevent the unnecessary curtailing of constitutional rights and freedoms and a positive duty to ensure and promote the protection of such rights and freedoms. This duty obligates the Head of Centre to continuously assess and reassess the classification of ‘disasters’, especially where the response by other organs of state results in severe and long-term limitation of constitutional rights and freedoms.
The Head of Centre is required to act independently and must objectively consider all the risks and consequences of a potential disaster event. His appointment is a specialist appointment required to ensure that disasters are properly assessed before any organ of state may invoke powers under the DMA. The further extension of the ‘national state of disaster’ is therefore effectively in the hands of Dr Tau. Sakeliga demands that he conducts a proper objective assessment of Covid-19, recognising all currently available data.
By lifting the ‘national disaster’ classification of Covid-19 and requiring clear and comprehensive justification for reinstating a ‘state of disaster’, businesses and the general public will experience immediate relief in the form of:
- a significant rebound in tourism;
- normalisation of commerce, hospitality, and travel;
- greater investment planning certainty as the country is no longer subject to erratic policy decisions;
- a reduction in compliance costs and effort in implementing rules issued under the state of disaster; and
- social stabilisation flowing from the recovery of employment after more than a million job losses from lockdown policies.
Sakeliga has written previously (12 January 2022) to the President and the Minister of COGTA (copying the NDMC) to inform them of Sakeliga’s position and demands. In our latest letter, we have now issued demands to the Head of Centre of the NDMC directly.
Piet le Roux
*Section 172 of the Constitution provides that a court may use discretion to make an order that is just and equitable in a constitutional matter. This could inter alia include directing the NDMC Head of Centre to reassess his ‘national disaster’ classification.