ANALYSIS | Dewald van Niekerk, Elmien du Plessis: KZN state of disaster - Beware the abuse of power

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Dr Pixley Ka Seme street in Durban strewn with dirt and filth following days of looting earlier this month.
Dr Pixley Ka Seme street in Durban strewn with dirt and filth following days of looting earlier this month.
Rajesh Jantilal/AFP

Can the Disaster Management Act be used when funding is needed to deal with a crisis? Dewald van Niekerk and Elmien du Plessis examine the issue after the KZN government declared a state of disaster following the unrest.

The recent civil unrest in KwaZulu-Natal and Gauteng is a stark reminder of the fragility of our society and state institutions. As South Africans, we were shocked and dismayed to see the escalation in violence and looting fueled by politics, poverty, inequality, the loss of hope, and disbelief in the state's ability to provide a better future. 

The violence and looting occurred against the backdrop of a global pandemic and a national state of disaster. At least some of the unrest may be connected with the impact of the pandemic.

Over the past 18 months, South Africans have come to know the Disaster Management Act (DMA) intimately. Politicians and citizens alike have come to know the powers which this law affords once a state of disaster is declared. Lives and livelihoods have been disrupted, and certain civil liberties limited. This was done in the hope of curbing the impact of the pandemic and to save lives. 

READ | Opinion: Understanding the Disaster Management Act and its implementation

The DMA, widely cited as a forward-thinking disaster risk management law, was developed at the turn of the millennium as a new generation disaster risk management law to reduce the risk of disasters and mitigate the consequences if we fail. The Act enables an integrated and coordinated approach and establishes national, provincial, and municipal disaster management centres. 

It also provides for a declaration of a state of disaster (on whichever sphere of government) to invoke measures against an occurrence that exceeds our ability to cope.

Classification and declaration of disaster

On this point, the DMA sets out specific procedures to be followed to declare a disaster. When an event occurs, it must first be determined whether it can be regarded as a disaster in the Act. And once that is done, an assessment must be undertaken about the severity of the disaster, and it must be classified either as local, provincial or national. This is done by the Head of the National Disaster Management Centre.

Once this is done, it enables the specific level of government to declare a state of disaster. If it is a provincial state of disaster, it unlocks certain powers for the province's Premier. For instance, the Premier can make directions on a wide range of issues. For example, directions can be issued to release any available resources, to implement disaster management plans and emergency procurement procedures.

But is it a disaster?

The Act will only be applicable when there is a "disaster". A disaster is defined as a "natural or human-caused occurrence which causes or threatens to cause death, injury or disease; damage to property, infrastructure or the environment; or significant disruption of the life of a community." It must be so big that those affected by the disaster cannot cope with the effects using only their resources. 

An occurrence falling within the definition of section 2 is not enough for the Act to be applicable. Section 2 provides that even if it falls within the definition of a "disaster", the Act will not be applicable if a State of Emergency is declared or if it can effectively be dealt with in terms of other national legislation.

The Act is silent on what specific events, natural or anthropogenic hazards, constitutes possible disasters. Some indicators can be found in the National Disaster Management Policy Framework that provides us with a classification of various hazards which might lead to disasters in South Africa. While the list is not exhaustive, issues such as civil unrest are not listed. It was initially included in the Green Paper on Disaster Management, but through subsequent refinement, was left out because it is dealt with in terms of other legislation. Nowhere in the DMA of Policy Framework are references made to "civil unrest" being a disaster. What complicates things is that civil unrest can impact on humanitarian wellbeing, needing extraordinary measures. The question is if it falls under the ambit of the DMA.

KwaZulu Natal Announcement

This brings us to the announcement that "Kwazulu-Natal provincial government declares state of disaster following civil unrest"

The reasons given was because of "the magnitude of the damage caused by the recent civil unrest", and that the estimated cost of the damages and relief is so high that "the situation is beyond the provincial and municipal capacity to deal with the cost of public riots and unrest". 

The Executive Council thus recommended that a provincial state of disaster be classified, as this "will support the reprioritisation of budgets to implement the repairs and recovery programs". This indicates that the main reason for wanting a state of disaster to be declared is the damage that occurred, access to contingency funds, reprioritising provincial funds, and the waiver of specific tender and procurement procedures. 

Civil unrest not a "disaster".

But does this fall within the ambit of the DMA? We like to argue that it is not the correct legislative instrument for the following reasons. 

Firstly, any state of disaster cannot be declared without the proper classification by the National Disaster Management Centre. The declaration is thus dependent on a thorough assessment by the NDMC. However, within the powers of the Head of the NDMC, if civil unrest alone is identified as "the disaster", he cannot classify it as a disaster for the simple reason that it falls outside of the ambit of the DMA. This puts the Head of the NDMC in a very precarious position.

READ | Jean Redpath: Inadequate and violent policing in Kwazulu-Natal - Whats behind it?

Secondly, civil unrest is a security issue. We have comprehensive legislation and institutions that should deal with such matters. Civil unrest cannot be classified as "the disaster" just because these institutions and processes are malfunctioning. Again, although the consequences of the unrest can lead to a humanitarian emergency, comparable for instance, to the aftermath of any natural hazard, or even normal humanitarian needs due to poor development over the years, the Act will still not be applicable. In this case, the province cannot cope not due to the hazard itself, but rather due to long term failures in governance and security. The DMA cannot be pulled out every time we have a humanitarian crisis due to bad governance. If this is the case, then the DMA can be used to address any day-to-day development issues that turns into a humanitarian emergency, such as the lack of clean water or unemployment. 

Thirdly, the civil unrest affected more than one province, making it a national issue. The current national state of disaster adequately provides for emergencies that might arise out of the disaster, and that can be classified as a "complex disaster".

Lastly, one should caution against the declaration of a state of disaster only to access funds (outside the normal accounting and procurement processes), as this can lead to an abuse of power. The question remains: is it necessary for such a declaration? No. We believe that current mechanisms make adequate provisions for dealing with the aftermath of the unrest. For instance: section 16 of the Public Financial Management Act makes ample provision for the use of funds in emergency situations, so too does section 29 of the Municipal Finance Management Act. 

Once a declaration of a state of disaster is invoked, it gives the sphere of government extraordinary powers. We cannot use the DMA to address existing development issues, and public and private sector losses. The DMA cannot only be pulled out when funding is needed to deal with a crisis. It opens the possibility for abuse of power that is contrary to the aim of the DMA.

Dewald van Niekerk is a professor in geography and the head of the African Centre for Disaster Studies at the North-West University. Elmien du Plessis is an associate-professor at the Faculty of Law, North-West University.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24

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