| Act No. 200, 1993
|
Constitution of the Republic of South Africa, 1993
|
State of emergency and suspension
34. (1) A state of emergency shall be proclaimed prospectively under an Act of Parliament, and shall be declared only where the security of the Republic is threatened by war, invasion, general insurrection or disorder or at a time of national disaster, and if the declaration of a state of emergency is necessary to restore peace or order.
(2) The declaration of a state of emergency and any action taken, including any regulation enacted, in consequence thereof, shall be of force for a period of not more than 21 days, unless it is extended for a period of not longer than three months, or consecutive periods of not longer than three months at a time, by resolution of the National Assembly adopted by a majority of at least two-thirds of all its members.
(3) Any superior court shall be competent to enquire into the validity of a declaration of a state of emergency, any extension thereof, and any action taken, including any regulation enacted, under such declaration.
(4) The rights entrenched in this Chapter may be suspended only in consequence of the declaration of a state of emergency, and only to the extent necessary to restore peace or order.
(5) Neither any law which provides for the declaration of a state of emergency, nor any action taken, including any regulation enacted, in consequence thereof, shall permit or authorise—
(a)
the creation of retrospective crimes;
(b)
the indemnification of the state or of persons acting under its authority for unlawful actions during the state of emergency; or
(c)
the suspension of this section, and sections 7, 8(2), 9, 10, 11(2), 12, 14, 27(1) and (2), 30(1)
(d) and
(e) and (2) and 33(1) and (2).
(6) Where a person is detained under a state of emergency the detention shall be subject to the following conditions:
(a)
An adult family member or friend of the detainee shall be notified of the detention as soon as is reasonably possible;
(b)
the names of all detainees and a reference to the measures in terms of which they are being detained shall be published in the
Gazette within five days of their detention;
(c)
when rights entrenched in section 11 or 25 have been suspended—
(i)
the detention of a detainee shall, as soon as it is reasonably possible but not later than 10 days after his or her detention, be reviewed by a court of law, and the court shall order the release of the detainee if it is satisfied that the detention is not necessary to restore peace or order;
(ii)
a detainee shall at any stage after the expiry of a period of 10 days after a review in terms of subparagraph (i) be entitled to apply to a court of law for a further review of his or her detention, and the court shall order the release of the detainee if it is satisfied that the detention is no longer necessary to restore peace or order;
(d)
the detainee shall be entitled to appear before the court in person, to be represented by legal counsel, and to make representations against his or her continued detention;
(e)
the detainee shall be entitled at all reasonable times to have access to a legal representative of his or her choice;
(f)
the detainee shall be entitled at all times to have access to a medical practitioner of his or her choice; and
(g)
the state shall for the purpose of a review referred to in paragraph
(c)(i) or (ii) submit written reasons to justify the detention or further detention of the detainee to the court, and shall furnish the detainee with such reasons not later than two days before the review.
(7) If a court of law, having found the grounds for a detainee’s detention unjustified, orders his or her release, such a person shall not be detained again on the same grounds unless the state shows good cause to a court of law prior to such re-detention.
