EXPLAINER | What the law says about declaring a state of emergency

A state of emergency is the last measure that government adopts to restore order in times of war‚ general insurrection and disorder.

The last time a state of emergency was declared in South Africa was in 1985‚ when President PW Botha said violence in the country showed ordinary law and order was inadequate.

Botha declared the state of emergency in 36 magisterial districts in the Eastern Cape and parts of Gauteng during the height of violent resistance to apartheid. The state of emergency at the time allowed police to detain people for long periods without trial. It also allowed the state to limit the freedoms of people.

Although democratic South Africa passed the State of Emergency Act 64 of 1997‚ it has not made regulations to enable the enactment of the law.

The Rapport newspaper reported on Sunday that the presidency last year put together a team to set up the regulations, but over the past few weeks there has been pressure in security circles to have it finalised.

According to the paper‚ the draft regulations ban anyone from writing‚ publishing or broadcasting threatening material. Members of the security forces would be allowed to use as much force as necessary to restore law and order‚ as long as it is proportional.

The current Act is derived from Section 37 of the constitution‚ which states that a state of emergency may be declared by the president‚ only when the life of the nation is threatened by war‚ invasion‚ general insurrection‚ disorder‚ natural disaster or any other public emergency.

The constitution also states that a state of emergency may not last for more than 21 days from the date of the declaration‚ unless the National Assembly resolves to extend the declaration. The assembly may extend a state of emergency for no more than three months at a time.

The constitution also states that the first extension must be by a majority resolution. Any subsequent extension must be adopted with a supporting vote of at least 60 per cent of the members of the assembly. A resolution to extend the state of emergency may be adopted only following a public debate in the assembly‚ the constitution states.

The constitution sees the courts as exercising an oversight role in a state of emergency.

Any competent court may decide on the validity of the state of emergency‚ any extension or law enacted or action taken by the state during such a period.

The constitution states that some rights contained in the Bill of Rights should not be tampered with during a state of emergency. These include human dignity‚ life‚ slavery and servitude‚ and the right not to be tortured in any way.

The constitution requires the state to publish a notice of those it had detained within five days and the court must review the detention as soon as reasonably possible‚ but no later than 10 days after the detention.

The Act states that no provision in the law shall authorise regulations that are inconsistent with the constitution.