Interim state of disaster regulations are ‘ultra vires’, says FOR SA

Cogta minister Dr Nkosazana Dlamini-Zuma

Freedom of Religion South Africa (FOR SA) says it celebrates the termination of the national state of disaster but views Cogta minister Dr Nkosazana Dlamini-Zuma’s continued regulation of society using the Disaster Management Act as ultra vires.

The government terminated the state of disaster at midnight last night but said that transitional regulations will remain in effect for a further 30 days. The regulations include the requirement for people to produce either a vaccination certificate or a negative Covid-19 test certificate (not older than 72 hours) in order to enter gatherings of over 1 000 people indoors or 2000 people outdoors.

“The minister is expressly only granted authority to make regulations and/or directions if a state of disaster is declared. Once a state of disaster is no longer declared, the minister is not empowered by the Disaster Management Act to make regulations”, says FOR SA’s legal advisor, Daniela Ellerbeck. 

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“The Act expressly states that if no state of disaster is declared, then Government must deal with a national disaster only in terms of existing legislation and contingency arrangements, which laws and arrangements cannot be augmented by regulations or directions,” she says in a statement.

FOR SA executive director Michael Swain says: “The state of disaster has been ended precisely because Covid-19 is no longer seen as a severe threat to public health. The state can no longer show that it requires extraordinary powers to take exceptional measures to ‘save lives’.

“There is therefore no justifiable legal, scientific or logical reason for these severe limitations on religious freedom rights to continue for one more day.”

Addressing the media today, Dlamini-Zuma warned that government can declare a national state of disaster again should Covid-19 infections spiral, reports Businesstech.

“If we look after ourselves, wear masks and make sure that we do what needs to be done… we may avoid a situation where this pandemic becomes a disaster again. That is what we’re hoping for. In the event that it becomes a disaster, we will have to revert back to the Act.”

She said since the pandemic was still existent, government needed to introduce transitional measures which she said were allowed by the DMA and were post-disaster measures.

The state of disaster that ended last night was in place for two years and three weeks since Dlamini-Zuma first declared the Covid-19 pandemic a national disaster on March 15 2020.

The interim disaster regulations include the requirement to wear masks indoors and existing restrictions on gatherings and on international travellers entering SA have been retained.

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