Staff Writer12 December 2017
Following growing concerns over proposed state of emergency laws in South Africa, civil rights group Right2Know (R2K) has made the draft regulations available to the public.

The presidency on Tuesday denied any knowledge of the draft document, saying it was not working on new state of emergency regulations.

However, according to an explanatory memorandum attached by R2K, an inter-departmental task team was convened in 2016 to start drafting State of Emergency regulations, in terms of the 1997 State of Emergency Act and Section 37 of the Constitution.

The task team document states: “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.”

Broadly, the document – which has now been widely distributed – paints a set of regulations to be used in the case of a state of emergency. These laws would be subject to section 37(4) of the Bill of Rights – which says that any regulations implemented in an emergency need to be within reason, and within the confines of international law.

However, many of the proposals contained within the document are vague – using undefined terms such as “disruptive statements” – and give the President blanket power to take full control of communication within the country, including via digital channels.

A state of emergency is typically a ‘last-resort’ move by governments, usually in times of war, insurrection and mass disorder. In South Africa it can be overruled and overturned by the courts. Under South Africa’s constitution, a state of emergency may not be longer than 21 days, with extensions needing majority approval by the national assembly.

BusinessTech looks at the nine biggest changes proposed under the draft regulations below. You can find the draft dated circa Oct 2017 here.

Restoring and maintaining peace and order

According to the document, whenever security officials have reason to suspect a person of potentially harming the public, they can order them to stop what they are doing and move away to a different area.
The same security officials can also use force against said suspects, proportional to whatever they deem is reasonable in the situation.
Security officials will also be able to detain (and release) suspects as they deem fit.
Interference with gathering or demonstration

The state can take action against those who threaten (even verbally) those who want to or don’t want to take part in any gathering or demonstration.
This does not include the security officials themselves.
Arrests and jail time

Security members can arrest any person if they believe it is necessary for the safety of the public.
An order must be obtained as soon as possible after the arrest, but not later than twenty four hours thereafter.
This includes detainment in a correctional centre under a written order signed by any member of a security service.
Threats of harm, hurt, damage or loss

No person may threaten any harm, hurt, damage or loss, whether to his, her or their person or property.
This extends to any publishing or transmitting or broadcasting of these threats.
Power of entry, search and seizure

If a security service member believes that that it is urgent and necessary to ensure the safety of the public he or she may without a warrant enter any place, premises, building, vehicle, vessel or aircraft.
They can search any person or any place, premises, building, vehicle, computer program, any electronic programmable device, or any other article.
These items can also be seized.
Security services can request your full name and address and you must show documentary proof of your identity.
“Control officers”

The President may appoint a so-called ‘control officer’ for any reason, and in any area he or she deems fit.
The control officer can establish a curfew; control access – including the closing of roads, businesses and properties in the affected area; and prohibit the sale of alcohol and firearms.
The control officer can also occupancy any premises within the area, and serve as an authority to people in the area.
Disruptive statements

You can be fined or imprisoned for three years for possessing, disseminating, distributing, producing or recording any “disruptive statement”.
This includes broadcasting said “disruptive statements” in any way.
Communication bans

The state will take full control of communication – including how the public will be advised on events during the state of emergency.
The President may temporarily block any computer-related communication that incites or endangers the public.
Jail time

Any person convicted of an offence under these Regulations shall be liable to a fine or to imprisonment for a period not exceeding three years or both.
Read: Concerns over new state of emergency laws: report

 

9 alarming state of emergency law proposals you really need to know about