‘Disaster act essential for state to function’

● Ramaphosa, Dlamini-Zuma respond to DA lockdown challenge in top court

The government needs the extraordinary powers set out in the legislation governing SA’s Covid-19 lockdown to be able to act efficiently and effectively in this state of disaster, President Cyril Ramaphosa and cooperative governance minister Nkosazana Dlamini-Zuma argue in papers before the Constitutional Court.

The DA has asked SA’s highest court to urgently hear a case in which they argue that a section of the Disaster Management Act is unconstitutional as it breaches the doctrine of the separation of powers and usurps parliament’s legislative powers without providing for any oversight.

The act focuses on, among other things, preventing and reducing the risk, and lessening the severity, of disasters.

SA has been under a strict national lockdown, which provides wide powers in terms of what the executive is able to do during a state of disaster under the act’s section 27.

It is this section the DA wants the court to declare unconstitutional.

The section also gives the co-operative governance minister wide-ranging emergency powers.

In a notice to oppose the DA’s application, filed on behalf of Ramaphosa and Dlamini-Zuma, the executive asks that the DA’s application be dismissed on the basis that the matter is not urgent, that it cannot be heard in two courts at the same time (the same case has been filed in the high court), as well as on its merits.

The president and the minister argue on the issue of urgency that the DA supported the legislation when it was passed in 2002, and that it has since taken no steps to address any shortcomings therein.

It is the first time the legislation has been used to this extent since it became law.

The executive also said the opposition party did not explain why it waited two months since the national state of disaster was declared under the act to bring an urgent application. A state of disaster was declared on March 15, and SA was placed under a lockdown at midnight on March 26 in a bid to curb the spread of the novel coronavirus.

SA is still under a lockdown, which is being relaxed incrementally, but there is no indication as to when the country will not be under any form of lockdown.

The lockdown has severely curtailed the freedoms of citizens, including when they can leave their houses, what they can buy and whether they can work

DA leader John Steenhuisen said in the founding affidavit to the Constitutional Court that SA was in a de facto state of emergency, without any of the rigorous oversight from parliament — which, for instance, has to vote on extending a state of emergency after 21 days, and on any further extensions after that.

To this claim the executive said: “The comparison with the state of emergency provisions is unfounded because a state of emergency suspends important provisions in the constitution.

“In any event, it does not afford parliament any control over the promulgation of emergency regulations.”

The president and the minister said delegating the powers under section 27 of the act was justified because the purpose was to enable the executive to “promptly, comprehensively and effectively [respond]” to any unforeseen national disaster.

They argued further that the DA overlooked that there were “ample provisions” under the rules of parliament to scrutinise the lockdown regulations, as well as hold the executive accountable.

“Even if section 27 of the Disaster Management Act is flawed, as the applicant contends, the remedy is inappropriate,” they argue.

“It is for parliament and not the courts to devise the mechanisms for the oversight by parliament over the exercise of delegated legislative powers conferred on the executive.”