Carte Blanche means literally “a free hand” or “total freedom”. It is interesting that the term “carte blanche” originates from French where it is understood as “white (or blank paper)” – the military term for surrender. It is ironic that this is exactly what this law allows – the military could get free reign, but if we look at this carefully then it is not what it allows.
There is a law in South Africa that allows the government and armed forces “a free hand”.
This law is now used as basis to fight COVID-19 and the application reveals the dangers in this legislation.
Disaster Management Act of 2002
The purpose of this act is to coordinate the efforts of state, provinces or municipalities to react to a disaster or the prospects of a disaster. A state of Disaster may be declared under this act without approval or oversight from Parliament or the Judiciary. Under disasters one would normally think floods, earthquakes, fires and drought or similar threats. Many of the regulations were probably written against the backdrop of that thinking and not so much dealing with the threat of a virus, although of course that is included in the act. It is therefore perfectly logical that you would not allow a person to travel by vehicle through an area that is engulfed in flames. It is a disaster and it is dangerous. When it is a virus that is causing this disaster, it clearly is more difficult to indicate where you can travel or where not. More on this aspect (freedom of movement) later.
There is a difference between a State of Emergency and a State of Disaster. A State of Emergency Act 64 of 1997 requires approval from Parliament, but it essentially cancels about all basic rights of citizens of the country. All of these possible events under a State of Emergency is clearly described in the Constitution of the Republic of South Africa. One of the matters that it prescribes is what should happen if a person is arrested and what the relevant days are within which certain actions should be fullfilled. This will give the citizen still a certain amount of security. The Constitution clearly refers to the State of Emergency. We know that all acts of parliament are subservient to the Constitution and the fact that the Constitution clearly refers to the State of Emergency strenthens that perception. It refers to the Constitution and the fact that a competent court may declare a State of Emergency nul and void.
Section 37 of the Constitution deals with the State of Emergency:
(3) Any competent court may decide on the validity of—
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a declaration
of a state of emergency.
The same is not true of the Disaster Management Act. It is not referred to or mentioned in the Constitution. You could argue that this act came into operation long after the Constitution was adopted (2002 vs 1995) and that is the reason for that. The act containing the Constitution has been amended several times after this, several years past 2002 with the latest in 2016. There has been enough time to include the DMA (Disaster Management Act) in the Constitution. It is not mentioned there at all.
Why is the DMA not mentioned in the Constitution?
I believe that this was on oversight from Parliament. The existing other legislation should be enough (or so the parliamentarians thought) to counter the DMA. It could also be that the current actions from Government during the Covid-19 crisis stems from authority that is not in the DMA but in the State of Emergency Act. The DMA does allow regulations to be issued by different departments/organs of state to deal with the particular issue at hand. It was probably never contemplated that these regulations will be what has transpired. Each organ of state had to draw up a Disaster Management Plan for their area of responsibility. One would think that some of these aspects would be indicated there, but it is not. As a matter of interest, the availability of alcohol for selling or trading is indicated in the DMA as something that could be stopped, but not the selling of cigarettes.
On the other hand – if this legislation is part of a clever plan and has been designed to stand separate from the Constitution (although it should not), then it will give the Government carte blanche, a free hand to do whatever they want to do. This is almost unthinkable, but not improbable.
The strategy for an overthrow of government could be as follows:
a. create a law that may allow exercise of powers not contained in the laws of the country
b. await an opportunity to enact that law
c. create enough hardship (like food shortage) to lead to open revolt by citizens (incite this revolt internally)
d. promulgate a state of emergency
e. silence all opposition
f. take over control of the army
g. remove executive (including State President) and dissolve parliament
h. redistribute assets
i. impose martial law
This would be unthinkable, but it is not impossible. In South Africa we are now in stage C where there is food supply uncertainty. Open revolt is not there yet.
To confirm my perception: I do not think for a minute that this is the planning of government, but I do not exclude this “unthinkable” situation that may be planned by certain elements.
Should the unthinkable happen in South Africa, most of the citizens will pay dearly – many with their lives initially and others with their livelihood.
Government Action outside the Law
Subsection 27 (3) of the act (DMA) says clearly that the powers of government in terms of subsection (2) may only be exercised for the following reasons:
(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.
This is subsection 27 (2):
(2) If a national state of disaster has been declared in terms of subsection ( 1 1. the
Minister may, subject to subsection (3),and after consulting the responsible Cabinet
member. make regulations or issue directions or authorise the issue of directions
(a) the release of any available resources of the national government. including
stores, equipment. vehicles and facilities;
(b) the release of personnel of a national organ of state for the rendering of
(c) the implementation of all or any of the provisions of a national disaster
management plan that are applicable in the circumstances;
(d) the evacuation to temporary shelters of all or part of the population from the
disaster-stricken or threatened area if such action is necessary for the
preservation of life;
( e ) the regulation of traffic to. from or within the disaster-stricken or threatened
(f) the regulation of the movement of persons and goods to, from or within the
disaster-stricken or threatened area;
g) the control and occupancy of premises in the disaster-stricken or threatened area;
(h) the provision, control or use of temporary emergency accommodation:
(i) the suspension or limiting of the sale. dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area
(j) the maintenance or installation of temporary lines of communication to. from or within the disaster area;
( k ) the dissemination of information required for dealing with the disaster:
(I) emergency procurement procedures;
(m)the facilitation of response and post-disaster recovery and rehabilitation:
( n ) other steps that may be necessary to prevent an escalation of the disaster. or to alleviate. contain and minimise the effects of the disaster; or
(0) steps to facilitate international assistance.
Then follow subsection ( 3 )The powers referred to in subsection (2) may be exercised only to the extent that
this is necessary for the purpose of–
Practical examples of the actions outside the Law:
- You cannot use armed forces to enforce rules or regulations – they can only render “emergency services”
- You cannot enforce a ban on the sale of tobacco – the law does not make provision for this.
- You cannot force people not to work as you cannot force shops to close down – the law does not provide for this
- You cannot force people living on the street to congregate in temporary shelters
- You cannot institute a curfew – the law does not allow for that
- You cannot force to people to stay indoors when they are not ill – the law does not allow for that.
- You cannot prevent healthy people from exercising outside.
- You cannot force churches to remain closed.
What about section (c) and (o) of the section 27 (2)?
Section (c) talks about a national disaster management plan that details mostly the organisation and coordination functions and not the other matters detailed above under the actions outside the Law.
Section (o) talks about other steps that may be necessary. Let us use the example of the sale of cigarettes and tobacco. Will this assist to prevent an escalation of the disaster or minimize it? One would be able to argue these matters and some of the other courses of action that the Government took under the current crisis (Covid-19).
This section should be removed from the legislation. If there is a course of action that may be contemplated, it should be debated in parliament first and then inserted in the act. You cannot have a wide open clause like this. It essentially says that you can “kill a person” if in your opinion that would prevent the escalation of the disaster.
What are the action steps now?
- Approach the Counstituional Court to declare the DMA inconsistent with the Constituion and to refer that back to Parliament to rectify
- Test one of the regulations in a competent court to see if the interpretation in this blog is correct.
- Share this blog as widely as possible.
- Ask for prayer intercessors to pray about this matter to bring possible plans of the enemy to nothing and to get the act rectified by parliament.
- Restart the economy
- Ask christian brothers (and sisters) to assist and provide for one another in the aftermath of the DMA-regulations.
8 May 2020 – last updated
Hansie Louw – 082 776 5462