|As has been reported in the press today, and as referred to in the State of the Nation Address last night, the Minister of Cooperative Governance and Traditional Affairs (“COGTA”), Minister Dlamini Zuma, last night declared a national state of disaster in respect of the impact of the severe electricity supply constraint.
As with the previous national state of disaster resulting from the Covid19 pandemic, we intend sending regular letters to our clients pertaining to the state of disaster, and its envisaged effects on our clients. These letters will also be loaded on our website as blogposts and interested persons are welcome to subscribe on the website, in order to be kept updated on new posts as and when they are made. You are of course also welcome to unsubscribe from these letters that we intend sending out as and when it may be necessary, by simply clicking on the unsubscribe link at the bottom of the e-mail to which this letter was annexed.
The state of disaster was gazetted last night in Government Gazette no 48009. It is important to note that, even though a state of disaster has been declared, no regulations have, as yet, been published, with the result that it is uncertain at this stage as to exactly what steps Government intend taking in order to deal with the stated disaster. Accordingly, we intend dealing with some of the rights and obligations of the Government and the public once a state of disaster has been declared.
As is by now well known, due to the handling of the Covid19 pandemic, the Disaster Management Act, 57 of 2002, (hereinafter referred to as “the DMA”) regulates how disasters may be declared and dealt with.
Section 1 of the DMA defines a disaster as meaning a progressive or sudden, widespread or localised, natural or human-caused occurrence which causes or threatens to cause death, injury or disease, or damage to property, infrastructure or the environment, or significant disruption of the life of a community, and which is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.
In the same vein, section 2(1)(b) of the DMA provides that the DMA does not apply to an occurrence which falls within the definition of a disaster as aforesaid, to the extent that that occurrence can be dealt with effectively in terms of other national legislation aimed at occurrences of that nature.
Based on the aforegoing, it is debatable whether the declaration of a state of disaster will survive the challenges that a number of political parties and other civil society originations have threatened to launch, should a state of disaster be declared. We will, however, monitor the situation and keep clients advised of any changes in this regard.
The DMA establishes the National Disaster Management Centre (“NDMC”), and section 23 of the DMA provides that, when a disastrous event occurs or threatens to occur, the NDMC should determine whether the event should be regarded as a disaster, and then classify same as a local, provincial or national disaster. This classification by the head of the NDMC indeed forms part of the same Government Gazette in which the state of disaster has been declared.
In this classification by the head of the NDMC, it is stated that he has assessed “the magnitude and severity of the substantial impact of the severe electricity supply constraint and its possible progression to a total blackout if not prevented”. As a result, the impact of the severe electricity supply constraint has been classified as a national disaster.
Section 27 of the DMA entitles the Minister of Cooperative Governance and Traditional Affairs, Minister Dlamini Zuma, to declare a national state of disaster in circumstances where existing legislation and contingency arrangements do not adequately provide for the national executive to deal effectively with the disaster or in where other special circumstances warrant such declaration.
Once a national state of disaster has been declared, section 27 of the DMA allows the Minister to make regulations or issue directions or allow the issuing of directions concerning.
• The release of any available resources of National Government;
• The release of personnel of a national of organ of state for the rendering of emergency services;
• The regulation of traffic to, from or within disaster stricken areas;
• The regulation of the movement of persons and goods to, from or within the disaster stricken area;
•The control and occupancy of premises in such area;
• The suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the area;
• Emergency procurement procedures; and
• Any other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster.
Furthermore, the powers referred to hereinabove may be exercised only to the extent that it is necessary for purposes of assisting and protecting the public, providing relief, protecting property, preventing or combatting disruption, or dealing with the destructive and other effects of the disaster.
It is also important to keep in mind that a national state of disaster lapses within 3 months after it has been declared unless terminated or extended by the Minister.
In light of the fact that regulations and directives pertaining to the handling of the state of disaster has not yet been published, it is at this stage uncertain as to how Government specifically intends dealing with the state of disaster. Until these regulations and directives have been published, there are no real effects of the declaration.
We will continue to monitor the regulations daily and will then advise as and when changes thereto are made.