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dispute resolution | 17 Jun 2020
BY Aslam Moosajee AND Shenaaz Munga
ENSight

dispute resolution


South Africa: government opposes the DA’s application to declare section 27 of the Disaster Management Act unconstitutional and invalid

The Minister of Co-operative Governance and Traditional Affairs (“COGTA Minister”), the Speaker of the National Assembly (the “Speaker”) and the president are opposing the Democratic Alliance’s (“DA’s”) application to declare section 27 of the Disaster Management Act, 2002 unconstitutional and invalid. 

In this application, the DA seeks leave from the Constitutional Court for direct access in terms of section 167(6)(a) of the Constitution read together with Rule 18 of the Constitutional Court Rules. The DA requests the Constitutional Court to pronounce that any declaration of a national state of disaster and any regulation or direction made or issued under section 27(2) should be laid before parliament by the COGTA Minister.

In relation to this application, the Chief Justice had directed the parties to file written submissions on whether direct access should be granted.  The parties have filed their written submissions. 

In its written submissions, the DA contended that this Constitutional Court application is not about the merits or demerits of the Regulations or the various directions made under the Act. The DA has indicated that even though the COGTA Minister has invoked far-reaching powers under section 27 of the Act, there are parts of the Regulations that are sensible and an appropriate response to the threats posed by the Coronavirus (COVID-19).  They, however, contend that there are parts of the Regulations which do little to prevent the spread of the virus and they come at an extraordinary cost to the economy and the rights of ordinary South Africans.

The DA’s main concern appears to be the concentration of power that section 27 of the Act places in the hands of the COGTA Minister.

Even though the Constitutional Court usually only grants direct access in exceptional circumstances, the DA contends that because of the pandemic, we are living in extraordinary times and therefore, it should be granted direct access. It adds that the application raises urgent issues of constitutional importance. The DA also argues that the Constitutional Court, as the upper guardian of our constitutional democracy, should finally resolve the question as to whether section 27 of the Act is unconstitutional.

The DA complains that the COGTA Minister is given the power to legislate on almost every aspect of the lives of citizens and she has used the powers to close the country’s borders, mothball various industries and tie-down many citizens to their homes. The DA expresses concern that the COGTA Minister does this without oversight. It also contends that the country is effectively being placed under a simulated state of emergency, without the safeguards as provided for in section 37 of the Constitution and the State of Emergency Act, 1997. 

The DA has also expressed concern that the national state of disaster could exist indefinitely, because while it was first declared on 15 March 2020, it was on 5 June 2020, extended to 15 July 2020. The DA also alleges that parliament’s approval was not sought or obtained for the extension and it suggests that the COGTA Minister could repeatedly extend the State of Disaster in the future, without input from parliament.

The DA contends that some of the debates presently occurring in the courts in regard to the constitutionality of various aspects of the Regulations ought to have properly taken place in parliament, because parliament,  as the elected representatives of the public, ought to have a say on issues that affect citizens’ daily lives.

There is no guarantee that the DA’s application will succeed by virtue of, amongst others, the following:

  • when the Act was enacted, the DA had supported its enactment;
  • the DA took approximately two months after the declaration of the state of disaster, to launch its application and the respondents contend that for this reason too, the application should not succeed; and
  • the respondents claim that the lock-down regulations have, in any event, been subject to intense scrutiny by parliament.

The COGTA Minister and the president contend that the DA’s application is borne out of the frustration of a minority party that it should have a say in the management of the national disaster, despite the fact that parliament, with the support of the DA, entrusted the management of the national disaster to the national executive. The COGTA Minister and the president also pointed out that parliament is a democratic institution, where the minority parties do not always have their way. 

The COGTA Minister and the president also highlight that section 55(2) of the Act provides that the national assembly must provide for mechanisms to hold the executive to account and to maintain oversight over their conduct. Government contends that these mechanisms are in place, but the DA has ignored these facts. 

The COGTA Minister and the president also contend that if the relief claimed by the DA is granted, it would constitute an unlawful intrusion into the exclusive domain of the national assembly and it is not permissible for courts to prescribe to the national assembly how to perform its oversight functions. 

In the COGTA Minister and the president’s written submissions, they point out that it is impossible to predict the precise nature of a national disaster and it is accordingly essential that the executive has the power to move at great speed to deal effectively with any national disaster. 

The government respondents have also highlighted that while the DA had the opportunity to adduce evidence in support of its case, they have not had an opportunity to challenge the DA’s evidence or to introduce any evidence of their own. Consequently, they contend that it would be unfair for the DA’s application for direct access to be granted on the basis of evidence only adduced by one party.

The Speaker also opposes the application and contends that the DA should not have approached the Constitutional Court directly.  Instead, the DA should have applied for relief in the High Court, so that the Constitutional Court does not need to deal with the matter as the court of first and final instance.  The Speaker contends that it is preferable for the Constitutional Court to have the benefit of the opinion of other courts.

The COGTA Minister, the Speaker and the president all contend that the DA’s application to the Constitutional Court should be dismissed.

It is still not clear whether this application will be decided on the basis of the papers filed or whether the Constitutional Court will allow the respondents an opportunity to file an answering affidavit or whether it will hear oral argument in regard to the application and if so, when.  We anticipate that if the Constitutional Court is not minded to dismiss the application for direct access on the basis of the papers already filed, it will direct the respondents to file answering affidavits and the DA to file a replying affidavit (if so advised).  Only thereafter will a date for the hearing of the application be set.

Even if the DA is granted direct access and it convinces the Constitutional Court to declare section 27 of the Act unconstitutional, it may not automatically follow that all of the declarations, regulations and directions made in terms of section 27 of the Act, prior to such a determination by the Constitutional Court, are invalidated. This judgment may only end up having a prospective effect.

We will continue to follow developments in regard to this particular application.

Aslam Moosajee

Dispute Resolution | Director

amoosajee@ENSafrica.com

+27 82 461 5917

Shenaaz Munga

Dispute Resolution | Associate

smunga@ENSafrica.com

+27 67 180 4706