Thread by @ChefIrma, This is the first of two threads on the lockdown in SA. [...]

This is the first of two threads on the lockdown in SA. The first will deal with the Disaster Management Act (DMA) and the second with the Constitution. This is an opinion and does not constitute legal advice. (Also, don't take legal advice from some random person on twitter..)

So, the original impetus for the DMA was apparently the floods that devastated the Cape Flats in June 1994. The was promulgated in Dec 2002 and came into effect in April 2004. Yes, it took 10 years. So the original focus was on disasters pertaining to floods, fires and drought

The purpose of the act was as follows:
To provide for-
a)an integrated and co-ordinated ... policy that focuses on preventing or reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness, rapid and effective response ... and ... recovery;

And this is important. The goal of the DMA is actually to make declarations of a state of disaster unnecessary! The whole focus of the act is to put in place structures, forums, a centre and a National disaster management framework.

All of these structures have been in existence for years now and, presumably, working on preparing for disasters. The whole idea was that, should a disaster occur, these structures would spring into action and just do their jobs. But that didn't happen, did it?

In this regard the definition of a "disaster" in section 1 is important. For something to be a disaster it must threaten death and destruction AND be "of a magnitude that exceeds the ability of those affected ... to cope ... using only their own resources."

It's important to remember you need to read these two requirements together. Clearly disease is always a problem, but is it something people cannot deal with on their own? And no, hospitals being overwhelmed does not fall into this category.

But that's not the end of the story. We must also look at section 2 which explains what is excluded from the definition. Section 2(1)(b) states that something cannot be a disaster if it is an "occurence" (sic) that can be "dealt with effectively in terms of other legislation".

Now, we have laws that regulate the sale of alcohol and cigarettes quite effectively, laws that deal with trade and industry, laws that regulate transport of goods, etc. Could we have dealt with this virus using existing laws? We'll never know.

But also, as we said, the DMA is intended to put structures in place to prevent a state of disaster. Why didn't it? Have we been paying for structures and frameworks and centres that simply doesn't work when actually needed? So not surprised.

So onto section 27 which allows the minister to declare a state of disaster if "existing legislation and contingency arrangements (i.e. the DMA) do not adequately provide for the national executive to deal effectively with the disaster."

So, by their own admission, all the structures and forums and frameworks were useless. #NotSurprised

Section 27(2) also gives a list of things the minister may make regulations about. And it is quite extensive, ending with " other steps that may be necessary", which covers a multitude of sins.

But it's 27(3) that's very interesting. It states that these regulations my be exercised ONLY insofar as they are NECESSARY for the purpose of:
a)assisting and protecting the public;
b)providing relief to the public;
c)protecting property;

d)preventing or combating disruption: or
e)dealing with the destructive and other effects of the disaster.

Now, if anyone can explain to me how stopping people from buying panties falls into these categories, I'd be grateful.

The important points to all of this are the following:
1.The DMA was supposed to kick in to prevent large-scale disruption. It didn't.
http://2.It is very doubtful if a viral outbreak falls within the ambit of the act, given the definition in section 1.

http://3.It is also doubtful if the criteria in section 2 can be met.
4.Section 27 gives the minister wide powers to make regulations, but these powers are not unfettered.

But the most important fact is that nowhere in the DMA does it give ANYONE the power to order a "lockdown". Yes, there are things that can be done. But shutting down an entire country? Nope. Sorry, but the act does not provide for that.

If the government had wanted to shut down the country, it needed to go with a state of emergency as provided for in the Constitution. But that would have required going through Parliament and being bound by the Constitution. Why didn't they?

Instead we have a situation where rights are being limited to a very large extent and without meeting the stringent requirements of the Constitution. But that is another conversation for another day.

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