Picture: Doctor Ngcobo/African News Agency (ANA)
Picture: Doctor Ngcobo/African News Agency (ANA)

EXPLAINED: What will it take for SA to declare a state of emergency

By Kelly Jane Turner Time of article published Jul 15, 2021

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The South African government can declare a state of emergency if it deems necessary, which will give it legal authority to suspend certain laws and rights and allow authorities increased power.

Calls have been growing amongst experts and groups for a state of emergency to be declared following the ongoing civil unrest and looting across KwaZulu-Natal and Gauteng.

Veteran human rights lawyer, Yasmin Sooka says a state of emergency is necessary as the government should be seen to act with urgency.

“At this point, our constitutional democracy is being threatened by violence and anarchy amounting to an insurrection,” she said.

“I don’t support the call for a state of emergency lightly, as I have vivid memories of state sponsored violence under various periods of emergency during the apartheid years which led to grave human rights violations.”

Adding fuel to the fire, South Africa risks being engulfed in a racialised civil conflict, says Sooka, as communities take up arms to defend themselves and their communities.

Since the start of the looting over the weekend, multiple malls and businesses across the two provinces have suffered devastating losses, and according to the Presidency, 72 people have died and over 1 200 people have been arrested.

The rioting began after former president Jacob Zuma handed himself in last Wednesday to begin serving his 15-month prison term for contempt of court.

What is a state of emergency?

The country is currently in an extended state of disaster due to the Covid-19 pandemic. This has allowed the government to introduce and give effect to lockdown restrictions.

A state of emergency gives the state power to temporarily suspend certain rights and allows it legal authority to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens.

The Constitution holds that a state of emergency can be declared to restore peace if the nation is threatened by war, disorder, civil unrest, or natural disasters.

Constitutional law expert Professor Pierre de Vos says for a country to declare a state of emergency, there is an “exceptionally high threshold to meet”.

“An armed insurrection, an attempted coup d’état, or some other catastrophic event that endangers the continued functioning of the democratic state might in some circumstances warrant such a declaration, but only if there are no other ways to deal effectively with the threat,” he said.

De Vos said that during a state of emergency, President Cyril Ramaphosa will be allowed to issue “draconian” regulations, authorise detention without trial and implement various forms of censorship.

“In the wrong hands, such powers will be abused, not only against insurrectionists and looters, but also against others whose actions displease the security forces and their political principles,” he said.

A state of emergency has its legal authority in Section 37 of the Constitution, to be declared for no more than 21 days and the National Assembly may extend a declaration of a state of emergency for no more than three months at a time.

What is government doing about the current situation?

The South African National Defence Force (SANDF) has deployed soldiers in Gauteng and KZN to assist law-enforcement agencies and quell the unrest that has gripped both provinces.

Defence and Military Veterans Minister Nosiviwe Mapisa-Nqakula said on Tuesday that the president will only declare a state of emergency when the need arises.

Speaking during the Justice, Crime Prevention and Security (JCPS) cluster meeting, she said she strongly condemns the current looting and damage to infrastructure, however, it does not warrant a state of emergency.

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