A state of emergency curtailing unions’ right to strike will create a legal quandary
Constitutional rights and civil liberties may be suspended if the last resort is taken to stop the virus outbreak
March 15 is considered an inauspicious day since it was on that day in 44BC that Julius Caesar was assassinated — an act that ended the Roman republic and changed the course of history — after he had been famously warned to “beware the Ides of March”. One hopes that when President Cyril Ramaphosa chose March 15 as the day to declare a state of disaster in SA as a result of the coronavirus pandemic he was not, like the soothsayer in Shakespeare’s Julius Caesar, preparing us for a disaster that will change the course of our history.
In addition to declaring a state of disaster Ramaphosa left the door open to the possibility of a state of emergency being called should our national effort lag and not flatten the curve of Covid-19 infections. The state of disaster has been given substance by the state putting in place a number of legal instruments, including the disaster management regulations that came into effect on March 18.
Among other things the latter prevent “gatherings”, which are defined broadly to include “any assembly, concourse or procession of more than 100 persons, wholly or partially in open air or in a building or premises”. Anyone who convenes a gathering as defined is guilty of an offence and, if convicted, is liable to pay a fine and/or to be imprisoned for up to six months.
The president has his hands full. His government is engaged in wage negotiations with the public service unions and has reportedly proposed that there should be no salary increases for the financial year starting April 1. The unions, most notably the National Education, Health and Allied Workers’ Union (Nehawu) are up in arms, and — notwithstanding the disaster management regulations — have threatened not only to go ahead with a strike on March 30 but to gather in groups of 99 people to protest against the state’s stance on wages. The DA, on the other hand, has warned that it will interdict the threatened strike and protest action by Nehawu if it goes ahead.
This brings into sharp focus the competing constitutionally enshrined rights that are at play — the right to strike and peaceful assembly, as against the right to life. It will be interesting to see whether the DA’s threatened legal action will be upheld by the courts given Nehawu’s rights to strike and peaceful assembly.
But the conundrum does not end there. It is possible (maybe even probable) that the drastic measures already taken by the government to “flatten the curve” may not be enough, and that as justice minister Ronald Lamola has hinted, a state of emergency may have to be declared. This will be a completely new ball game should it come to pass.
At its core, a state of emergency suspends our ordinary legal structures, procedures and safeguards and empowers a single office to deal expeditiously with an urgent peril that threatens the state. States of emergency are regulated by section 37 of the constitution, as well as the State of Emergency Act. Our constitution allows for the declaration of a state of emergency only when the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergencies; and the declaration is necessary to restore peace and order. The Covid-19 pandemic, as well as any public disorder that may ensue if infection rates reach a doomsday scenario, could well fall within this ambit.
The State of Emergency Act requires the president to inform parliament of such a declaration of a state of emergency and table any regulation made to restore peace and order, or to deal with any circumstance that may have arisen or are likely to arise as a result of a state of emergency. Parliament would have to agree to such regulations. A state of emergency may last for 21 days unless parliament extends it for up to three months. Thereafter, a 60% parliamentary majority is required to extend it further.
Assuming a state of emergency is declared, constitutional rights and civil liberties may be suspended for its duration. This would include the rights to assembly, to strike and the like. However, doing so must be “strictly necessary” and in line with international law. Some exceptional rights cannot, however, be violated, even during such a state of emergency. These include the rights to human dignity, equality and life.
It seems to us that in a state of emergency (should it come to pass) the right to life and the threat Covid-19 poses to SA at large would trump the right to strike. This would place the public sector unions on the back foot during a time when their members are expected to bear the brunt of the R160bn saving announced by finance minister Tito Mboweni in his budget speech a few weeks ago. It might be that this is a bitter pill that they, and society at large, will have to swallow in the interests of flattening the Covid-19 infection curve.
Mothibi is a director and Moore a candidate attorney at ENSafrica.