Does the State of Disaster end by midnight tonight?
There seems to be confusion on social media about 15th of August and the end of the State of Disaster. Despite some people stating that today marks the end of the “lockdown”, all indications are that the State of Disaster will be extended and that we will move to Level 2 soon.
Let me explain why I think so.
Declaration of a State of Disaster
Section 27 of the Disaster Management Act provides that the Minister responsible (currently the Minister of Co-operative Governance and Traditional Affairs) may declare a national state of disaster if there is no existing legislation provided for the executive to deal with a disaster, or if other special circumstances requires it. This State of Disaster will lapse after three months (if it is not ended sooner) and can be extended by the publication of a notice in the Government Gazette for one month at a time.
This is what has happened so far. The last extension was published on 13 July 2020.
The government also informed us that they wish to manage Covid in terms of “alert levels”. This will enable the government to move between different levels, depending on the rate of infections and other considerations. I am not sure if it is still helpful to call it a “lockdown” rather than “alert level restrictions”.
The system is explained as follows:
Alert levels determine the level of restrictions to be applied during the national state of disaster.
(a) ‘Alert Level 1’ indicates a low Covid-19 spread with a high health system readiness;
(b) ‘Alert Level 2’ indicates a moderate Covid-19 spread with a high health system readiness;
(c) ‘Alert Level 3’ indicates a moderate Covid-19 spread with a moderate health system readiness;
(d) ‘Alert Level 4’ indicates a moderate to a high Covid-19 spread with a low to moderate health system readiness;
(e) ‘Alert Level 5’ indicates a high Covid-19 spread with a low health system readiness.
The Ministerial Advisory Committee must advise the Minister of Health regarding which Alert Level should be declared nationally, provincially, in a metropolitan area, or a district, when taking into account
(a) the epidemiological trends of Covid-19 infections;
(b) the health system capacity in a specified area to respond to the disease burden; and
(c) any other factor that would influence the level of infection, hospitalisation and mortality.
Other countries follow a similar model, for instance, the United Kingdom and Australia. There is also criticism of using this model.
Levels depend on a State of Disaster being declared
It is important to remember that the existence and management of all the alert levels are done in terms of regulations and directives promulgated in terms of the Disaster Management Act, and are dependent on a State of Disaster being in place (in terms of section 27).
This means that as long as we are on any of these levels, the State of Disaster must be active. As soon as we are no longer in State of Disaster, the legislative authority on which the regulations and directives rest will no longer be in place, which in turn means we will not be on any level.
By all indications, we will be in this “State of Disaster” for as long as Covid-19 poses a thread, which may be for a reasonably long time.
So where are we at?
We are currently having conversations about moving from level 3 to level 2. And although we are unsure exactly what that means, this table gives some idea of what is envisioned.
If the conversation is a move from level 3 to level 2, then it means that the State of Disaster will be extended and that in all probability, we will move to level 2. For this to happen there needs to be a whole new set of regulations promulgated (in the form of an amendment to the first set of regulations). And this is what we are waiting for.
So, I am sure we will see the Government Gazette Notice that states that the State of Disaster is extended, followed by an amendment to the regulations to provide for “level 2”. Because if there is no State of Disaster, all the regulations and directives fall away, and we return to “live as before Covid-19″. An almost impossible place to recall.