State of disaster open to legal challenges

The declaration of the energy crisis as a national state of disaster can be challenged legally as there is already sufficient legislation to deal with it, according to legal experts at Webber Wentzel.

President Cyril Ramaphosa, during his state of the nation address (SONA) on 9 February, declared the energy crisis a National State of Disaster in terms of the Disaster Management Act of 2002 (DMA).

This is an “extreme legal measure, which ousts parliamentary supervision over lawmaking” and has resulted in numerous legal challenges against the declaration.

Chief among these challenges are those from the Democratic Alliance, Solidarity, and Sakeliga.

While the regulations under the declaration are yet to be published, Mzukisi Kota, Lubumba Kamukwamba, and Lize-Mari Doubell of Webber Wentzel have published a legal opinion outlining the basis on which the challenges may proceed.

Requirements for a State of Disaster to be declared

A disaster under the DMA is defined as a progressive or sudden, widespread or localised, natural or human-caused occurrence which both:

• Causes or threatens to cause (i) death, injury, or disease; (ii) damage to property, infrastructure, or the environment; or (iii) significant disruption of the life of a community.
• Is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.

Section 27(1) outlines that a national disaster may only be declared if existing legislation and contingency arrangements do not adequately provide for the disaster to be dealt with.

A state of disaster can also be declared in special circumstances.

The actions government may take are limited by the Act to releasing government resources, enacting emergency procurement measures, and implementing a disaster management plan.

Potential challenges

The energy crisis does meet the definition of a disaster, but it is debatable whether the requirements for the declaration of a national disaster have been met.

In his SONA speech, Ramaphosa justified the declaration as enabling a “coordinated response from the centre of government”.

This response includes the support of businesses by rolling out generators and solar panels and the exemption of critical infrastructure, such as hospitals, from load-shedding.

Measures also include accelerating the implementation of energy projects and limiting regulatory requirements.

However, according to Webber Wentzel, these measures do not require a state of disaster to be declared as they can be performed under existing legislation.

The only as thing not provided for by existing legislation is for a response centralised response under the Presidency.

For example, the Electricity Regulation Act of 2006 (ERA) already empowers the Minister of Mineral Resources and Energy to procure new generation capacity.

Under the ERA, the Minister is also empowered to provide state guarantee, indemnity, and security, or enter into any other transaction that binds the state to future commitments.

The Minster is even empowered to expropriate land to facilitate objectives contained in the Act.

An example of the power in this Act being used was in the removal of the 100 MW licensing threshold at the end of 2022.

The swift action called for by the President can already be achieved under this legislation, according to Webber Wentzel, and so does not warrant the declaration of a national disaster.

The Public Finance Management Act, on the other hand, empowers the Minister of Finance to use funds from the National Revenue Fund to fund “expenditure of an exceptional nature which is currently not provided for”.

This allows the Minister to bypass parliament and allocate funds rapidly in the case of an emergency.

Instruction 3 of 2021/2022 from the National Treasury provides for a deviation from ordinary tender procurement processes in an “emergency situation” or an “urgent case”.

These pieces of legislation, according to Webber Wentzel, show that the declaration of the energy crisis as a national disaster does not meet the requirements outlined in Section 27(1) of the DMA.

Thus, legal challenges against the declaration may proceed on the basis that there is adequate existing legislation that enables the government to address the energy crisis.

This is a similar legal basis upon which British American Tabacco successfully opposed the regulations under the national disaster instituted during COVID.