Cape Town – Proposed draft regulations for a state of emergency would give the president the right to appoint a "control officer", who would have far-reaching powers, including the prohibition of the dissemination of information.
A "reasonable" member of a security service would also have the authority to make arrests without a warrant.
This according to a leaked South African National Defence Force (SANDF) document containing proposed draft regulations.
The Presidency on Tuesday denied that it was involved in the drafting of regulations to be used in a state of emergency.
News24 has seen documents from the South African National Defence Force's (SANDF) defence legal services division (DLSD) on the arrangements for a workshop on draft regulations to be used in the case of a state of emergency, including a document with draft regulations.
Nowhere in these documents is there reference to the Presidency pertaining to the organisation of the workshop. The documents state that an interdepartmental task team, including the Department of Defence, was appointed in 2016 to "commence the drafting of state of emergency regulations", without saying who appointed the task team.
'Restoration or maintenance of peace'
The 30 people who were invited to the workshop on October 25 at the South African Airforce College Thaba Tshwane only included military officers.
One document states that the SANDF "plays an active role in enforcing state of emergency regulations".
"Accordingly, information briefs on the draft regulations were presented to DLSD command council and the operations staff council.
"The draft regulations is a concept master document, to be adapted by the task team as the circumstances of the specific emergency will dictate as and when it arises. The regulations will only thereafter be signed and promulgated by the president."
The draft regulations, if put into practice, would allow a member of "a security service" who "is of the reasonable opinion" that his or her actions would be in the interest of safety or "restoration or maintenance of peace" the power to:
- Order "in a loud voice in one of the official languages" to leave to a place designated by the security officer or desist from the conduct;
- Disarm people;
- Make arrests without a warrant;
- Question an arrested person;
- Enter any place, premises, building or vehicle without a warrant;
- Search any person or place;
- Seize any vehicle; and
- Request any person to provide his or her full name and address or proof of identification.
According to the draft regulations, the president would also have the power to appoint a "control officer" for a designated area. This "control officer" would have several powers, including:
- Establishing a curfew;
- Controling service infrastructure;
- Controlling, prohibiting or regulating the dissemination of "any comment on, or news required for dealing" with the cause of the state of emergency;
- Activation of emergency operations plans;
- Implementation of "public-protective measures", including prohibiting the sale of firearms and alcohol; and
- "Any other matter which in his or her reasonable opinion, is necessary or expedient for ensuring the safety of the public or restoration or maintenance ofpeace and order.
There is also a draft regulation that would effectively allow for an internet blackout, which reads as follows: "The president may issue a rule or bylaw to provide for the manner in which any measure may be taken to temporarily block any computer-related resource, communication or activity that incites the endangering of the safety of the public or a disturbance of peace and order."
According to the State of Emergency Act, Parliament has the power "disapprove of any such regulation, order, rule or bylaw" of a state of emergency.
According to section 37 of the Constitution, a state of emergency may only be declared when "the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and the declaration is necessary to restore peace and order".
The state of emergency may last no more than 21 days unless extended by the National Assembly.
"The assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60% of the members of the assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the assembly," reads the Constitution.
Army 'not in charge'
Furthermore, the Constitution also allows the courts to "decide on the validity of a declaration of a state of emergency" or any extension of the state of emergency, or any legislation or actions taken in consequence of the state of emergency.
The State of Emergency Act also prohibits any legislation relating to the tenure or election of members of Parliament or provincial legislatures, or sittings of Parliament.
On Sunday Rapport, sister publication of News24, reported that the Presidency had started to compose regulations for a state of emergency.
The army decided after a workshop to support the project and develop an operational plan. Army spokesperson Simphiwe Dlamini said the army was just a role player and was not in charge of the sudden review, Rapport reported.
"The Presidency rejects the media reports alleging that the Presidency has started composing draft regulations for a state of emergency and that President Jacob Zuma has appointed a team to draw up such regulations," reads a statement from Zuma's spokesperson Bongani Ngqulunga.
"The Presidency is not working on regulations for a state of emergency."
The Constitution and the State of Emergency Act prescribe the power to proclaim a state of emergency, with the accompanying regulations, to the president.