We need to reflect on how the Disaster Management Act is being implemented so that with the next possible disaster, there is clarity on whose business the management of risks and disasters is.
Interpreting considering the purpose of an Act
In South Africa, we follow a purposive approach to interpreting legislation. This means that, when courts interpret legislation, they seek to give effect to the purpose of the legislation.
An application and understanding of the regulations and directives, therefore, require an understanding of the Disaster Management Act, and what it seeks to achieve.
The purpose of the Disaster Management Act is not only important for purposes of interpretation. When the regulations are challenged on the principle of legality, the test is whether the regulations are rationally (not reasonably or proportionally) related to the aims of the declaration of the state of disaster.
The Act makes it clear that this can only be done to the extent necessary for the purposes listed in the Act.
So, to interpret and give legal effect to (and test) the regulations, it is of vital importance to understand what the Act seeks to do, including the legislative framework and the institutions that it envisioned would manage disasters.
Development of the Disaster Management Act
The Act was the result of a lengthy legislative process which started in 1994. Devastating floods in the Cape Flats exposed the inadequacies in the Civil Protection Act 67 of 1997 in caring for the majority of people of South Africa, and the most vulnerable at that.
The new democratic government embarked on a Green/White Paper process, which lead to the first draft Bill on Disaster Management in 1999.
The Act, however, was not promulgated until early 2003 due to legislation on "crossing the floor", which occupied the collective thoughts in Parliament.
The main aim of the legislative process was to drive a paradigm shift from only responding to disasters to that of disaster risk reduction. In line with international thinking, the focus shifted from "disasters" to "hazards" and "vulnerability".
No longer could disasters be seen as natural phenomena, which only required some response.
Our Disaster Management Act was acknowledged internationally as one of the most forward-thinking new generation laws on disaster risk and the management thereof. This new focus influenced how a disaster and disaster risk management was defined in the Act.
It is also this definition of "disaster", which greatly impacts how the Covid-19 pandemic is being managed in South Africa.
Aim of the Disaster Management Act
The aim of the Act is to ensure that disaster risk reduction becomes an institutional requirement for all sectors and spheres of government. It, therefore, calls for the development of a national policy (in the form of the National Disaster Management Framework) and the establishment of a National Disaster Management Centre with decentralised disaster risk management structures in municipalities, metros, and provinces. It also designated responsibilities within each organ of state.
To give effect to intergovernmental relations, the Act requires that the president establishes an Intergovernmental Committee on Disaster Management, and calls for all municipalities and organs of state to develop disaster risk management plans and report on these to the National Disaster Management Centre on an annual basis. Furthermore, each Disaster Management Centre is responsible for establishing a Disaster Management Advisory Forum, which aims to bring together many stakeholders from within government, the private sector, NGOs, and academia.
Role of the National Disaster Management Centre
Although the Act and National Disaster Management Framework was a very forward-thinking law at time of promulgation, the implementation thereof has been less so. Research at all levels of government highlighted the challenges and lack of implementation.
The main reasons for the limited implementation have been the placement of the various Disaster Management Centres as well as the lack of perceived importance of multi-sectoral disaster risk reduction. The National Disaster Management Framework makes the argument for the placement of the disaster risk management function (the centres) within government structures.
The thinking at the time of the development of the Act was that the National Disaster Management Centre would be placed within the presidency, as is the case in most other countries. The escalation of the placement to the other spheres of government would thus follow a line: Provincial Disaster Risk Management Centres in the Premiers' Office and Municipal Disaster Risk Management Centres in the office of the Municipal Manager (not Mayor's office for other legislative reasons).
However, this never occurred, and the National Centre remained within the Ministry of Cooperative Governance and Traditional Affairs.
The main argument for the placement of the National Centre in the highest political office is the need for decisive and mandated decisions on issues pertaining to hazards and disasters. The Act in Section 3 makes provision for the Act to be administered by a Cabinet minister designated by the president (currently the Minister of Cooperative Governance and Traditional Affairs (Cogta). The Amendment Act indicates that the Head of the National Centre (Dr Tau) reports directly to the minister.
At the time of the promulgation of the Act, the idea was that the Minister in the Presidency would be given this responsibility, which means that the National Disaster Management Centre would be placed in the Office of the Presidency. This argument was supported at the public hearings of the DM Bill in Parliament by all political parties.
The logic in this argument was two-fold.
Secondly, the designated minister will have extraordinary powers in the case of the declaration of a national state of disaster, as the current state of disaster confirmed, and thus the Minister in the Presidency would be the most appropriate accounting line due to his/her proximity to the president.
This would mean, for example, that in the event of the declaration of a national state of disaster, the regulations would come directly from the presidency and not a line ministry. A national "state of disaster" is also unique in the sense that the Act defines a disaster as an occurrence which "threatens to cause or causes" damages and losses. Thus, any "state of disaster" (local, provincial or national) can be classified and declared if we can foresee that the occurrence might, or does exceed our abilities to cope with it. The preventative and risk reduction perspective is thus clear.
In the years that followed, the implementation of the Act was dismal at best. The National Centre was relegated to a section within Cogta, with minimal powers to ensure the implementation of the Act across sectors and spheres of government.
The motto of disaster management changed from "Everyone's business" to "Not my business".
Covid-19 highlights the error in the placement of the disaster risk management function within a ministry and not the presidency.
Intergovernmental Committee on Disaster Management
This also muddles intergovernmental duties during disasters. The Act gives the president the responsibility in Section 4(1) to establish the Intergovernmental Committee on Disaster Management. Paragraph 1.1.1 of the National Disaster Management Framework gives further clarity.
While the Intergovernmental Committee has been established by the president, it has not had a meeting since 2002. It should meet at least four times per year as per the National Disaster Management Framework.
This means that the oversight role of Cabinet in terms of disaster risk management has not been functioning as per the law. If this committee was operating as required by the legislative framework, it would also mitigate the need for Cabinet members to be "deployed" to a province , as well as the need to have established the National Coronavirus Command Council in the first place – the Intergovernmental Committee would have fulfilled that role.
As with most laws, the Disaster Management Act was developed and promulgated as a top-down approach. However, the Act is quite clear in its bottom-up implementation. Disaster risks must first and foremost be identified, assessed, reduced, and managed at local government level through the current developmental processes. Any event remains a local concern until it escalates to another level.
The lack of proper implementation of the Act at the national level has undoubtedly had a significant impact at the provincial and local level. In the majority of cases, disaster risk management is just not a serious concern of sector managers and political decision-makers. Covid-19 shows that old sins have long shadows.
From a legal point of view, this creates interpretative conundrums. We focus narrowly on Section 27 of the Act, while the rest of the centres and the committees in the bigger legislative framework is either not functioning or functioning sub-optimal.
The lack of implementation and weak institutions lead to creative and confusing decision-making structures and processes, as we see with the National Coronavirus Command Council, with implementation by the NatJoints (a security structure, and not a disaster risk management structure as provided for in the Act).
This might have implications for our democratic governance and contribute to an underlying nervousness about cooperative governance relations and executive decision-making during a time when people are understandably emotional.
It seems as if one of the most forward-thinking disaster risk management legislative instruments could not foresee this conundrum. It leaves us to do a fair bit of reflection on how we will ensure that the Act is implemented in its entirety, so that with the next possible disaster, there is clarity on whose business the management of risks and disasters is.
Dewald van Niekerk is a professor in geography and the director of the African Centre for Disaster Studies at the North-West University.
Elmien du Plessis is an associate-professor in law at the North-West University.