DISASTER MANAGEMENT REGULATIONS

This article appeared in the 19 March edition of Legalbrief Today, under Policy Watch

All Covid-19-related regulations gazetted this week are prescribed under the 2002 Disaster Management Act and enable each department to direct certain actions under matters falling within its legislative mandate. Explaining this on Thursday in a media statement providing insight into government intervention measures announced on Sunday, Cooperative Governance & Traditional Affairs Minister Nkosazana Dlamini-Zuma said the regulations were ‘designed to create a regulatory framework for government to respond to the Covid-19 virus in an integrated and co-ordinated manner’. ‘They enable us, as government, to focus on preventing a disaster and, where applicable, reduce the risk of disasters,’ the Minister continued – adding that, as an emergency preparedness regime, they ‘activate government’s capacity’ for a ‘rapid and effective’ response in specific situations.

Against that backdrop, the new regulations deal with the release of resources; the prevention and prohibition of gatherings; ‘the refusal of medical examination, prophylaxis, treatment, isolation and quarantine’; identifying and availing places of quarantine and isolation; the closure of schools and partial care facilities; the suspension of visits to correctional centres, remand detention facilities, holding cells, military detention facilities and Department of Social Development facilities (including child and youth care centres, shelters, one stop centres and treatment centres); limitations on the sale, dispensing and transportation of liquor; emergency procurement procedures; and the ‘authority to issue directions’. As has already been widely reported, the regulations were gazetted on Wednesday – with the official declaration of ‘a national state of disaster’.

They provide context to the necessary disaster-related regulations on international air travel; ports; consumer protection from unfair pricing; and the allocation of healthcare services and supplies (involving exemptions from sections 4 and 4 of the 1998 Competition Act, dealing with restrictive horizontal and vertical practices). According to Business Day, the exemptions will facilitate collaboration between the public and private sectors on making the best use of hospital facilities. All new regulations are immediately effective.

Meanwhile, the Independent Communications Authority of SA is working with network service providers on ways of facilitating ‘easy and affordable (and/or free) access to data’ as increasing numbers of the country’s citizens use the internet to work, learn and continue essential day-to-day activities from home. This is also noting that the ‘spike in data usage’ could strain network capacity. According to Thursday’s media statement, ‘regulatory concessions or relaxations’ are being considered.

Thursday’s announcement by South African Reserve Bank Governor Lesetja Kganyago of a ‘cut the repo rate by 100 basis points’ was described by the Daily Maverick as another ‘dramatic’ move underlining ‘the gravity of the unfolding economic and social crisis triggered by the Covid-19 pandemic’. ‘Covid-19 is likely to result in weaker demand for exports and domestic goods and services,’ Kganyago said in his Monetary Policy Committee statement, also referring to the likelihood of ‘disruptions to supply chains and to normal business operations’. However, the impact of the virus on SA’s economy ‘could be partly offset by lower oil prices’.

LAND EXPROPRIATION WITHOUT COMPENSATION: the process

Recent media statements on draft Constitution 18th Amendment Bill public hearings nationwide point to the distinct and rather worrying possibility that participants do not understand the process (Legalbrief Policy Watch).

It has unfolded as follows:

  • February 2018: Parliament establishes a joint constitutional review committee to ‘investigate possible amendments to Section 25 of the Constitution’ to provide explicitly for land expropriation without compensation, and to hold nationwide public hearings on the need for/desirability of such amendments.
  • December 2018: Informed by the outcome of these hearings, the National Assembly agrees that section 25 of the Constitution should be amended ‘to make (the) expropriation of land without compensation more explicit’.
  • December 2018: An ad hoc committee is established by the National Assembly ‘to initiate and introduce legislation – before the end of the fifth Parliament – to amend section 25 of the Constitution so that (the) expropriation of land without compensation is made explicit, as a legitimate option for land reform’.
  • March 2019: The committee concedes that it will not be able to fulfil its mandate before South Africa’s 5th democratic Parliament rises for May’s general elections (committee report).
  • July 2019: South Africa’s 6th democratic Parliament establishes a new ad hoc committee mandated to introduce the necessary legislation by 31 March 2020.
  • December 2019: The committee invites members of the public to comment by 31 January 2020 on a draft Constitution !8th Amendment Bill.
  • December 2019: the draft Bill is gazetted.
  • January 2020: The committee extends its deadline for comment on the draft Bill to 29 February.
  • February 2020: In his State of the Nation Address, President Cyril Ramaphosa confirms that a revised Expropriation Bill (to be tabled in Parliament once the committee has completed its work) will prescribe ‘the circumstances under which (the) expropriation of land without compensation would be permissible’.
  • February 2020: Provincial public hearings on the draft 18th Constitution Amendment Bill begin.
  • March 2020: A draft schedule for the remaining hearings is published as the hearings continue.
  • March 2020: The committee finalises its public hearings schedule as the process continues.
  • March 2020: The deadline for introducing the Constitution 18th Amendment Bill is extended to 29 May 2020.

The Constitution 18th Amendment Bill will provide the legal framework for expropriation without compensation to be used as one measure for accelerating land reform in the public interest.

The revised Expropriation Bill will attend to the specifics.

The process of developing the Expropriation Bill unfolded as follows:

  • March 2013: A draft Expropriation Bill is gazetted for comment.
  • February 2015: The Expropriation Bill is tabled in Parliament.
  • May 2016: The Bill’s ‘D’ version is passed by Parliament and sent to the President (then Jacob Zuma) for signature.
  • February 2017: The President sends the Bill back to Parliament, citing concerns about inadequate consultation and public participation.
  • July 2018: President Cyril Ramaphosa announces the ANC’s national executive committee decision to introduce expropriation without compensation as one measure for accelerating land reform (TimesLIVE).
  • September 2018: The Expropriation Bill is withdrawn from Parliament.
  • December 2018: A draft revised Expropriation Bill is gazetted for public comment.
  • December 2019: A media statement on Cabinet’s final meeting for the year announces that the draft Bill has been further revised and will be released for another round of public comment.
  • February 2020: In his State of the Nation Address, President Cyril Ramaphosa announces that ‘government stands ready’ to table the Expropriation Bill in Parliament once the committee has completed its work.