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Emergency Powers (Art.37)

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(1) A state of emergency may be declared only in terms of an Act of Parliament, and only when

  1. the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
  2. the declaration is necessary to restore peace and order.

(2) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only

  1. prospectively; and
  2. for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. 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 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.

(3) Any competent court may decide on the validity of

  1. a declaration of a state of emergency;
  2. any extension of a declaration of a state of emergency; or
  3. any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.

(4) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that

  1. the derogation is strictly required by the emergency; and
  2. the legislation
    1. is consistent with the Republic's obligations under international law applicable to states of emergency;
    2. conforms to subsection (5); and
    3. is published in the national Government Gazette as soon as reasonably possible after being enacted.

(5) No Act of Parliament that authorizes a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorize

  1. indemnifying the state, or any person, in respect of any unlawful act;
  2. any derogation from this section; or
  3. any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.

Table of Non-Derogable Rights

1

Section Number

2

Section Title

3

Extent to which the right is protected

9

 Equality With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language

10

 Human Dignity Entirely

11

 Life Entirely

12

 Freedom and Security of the person With respect to subsections (1)(d) and (e) and (2)(c).

13

 Slavery, servitude and forced labour With respect to slavery and servitude

28

 Children With respect to:

- subsection (1)(d) and (e);

- the rights in subparagraphs (i) and (ii) of subsection (1)(g); and

- subsection 1(i) in respect of children of 15 years and younger

35

 Arrested, detained and accused persons With respect to:

- subsections (1)(a), (b) and (c) and (2)(d);

- the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d)

- subsection (4); and

- subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair.

(6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:

  1. An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained.
  2. A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee's name and place of detention and referring to the emergency measure in terms of which that person has been detained.
  3. The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner.
  4. The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative.
  5. A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order.
  6. A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.
  7. The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.
  8. The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention.

(7) If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.

(8) Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.

 

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