FF+ lockdown challenge fails

THE Gauteng High Court, Pretoria, has dismissed the legal challenge by the Freedom Front Plus to declare the Disaster Management Act and lockdown regulations unconstitutional.

A full Bench, led by Judge President Dunstan Mlambo, was again called on to rule on the legality of the State’s response to the Covid-19 crisis.

The court agreed with the government that the political party’s attack on the Disaster Management Act was founded on a misconception and fundamentally flawed.

The FF+ had challenged the validity of the National Disaster Management Act and argued that the legislation gave unrestricted powers to the Minister of Co-operative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma.

The party’s argument also included that while a national state of emergency had checks and balances built in to ensure the rights of citizens, a national state of disaster gave too much power to the minister to trample on the rights of citizens.

It was argued on behalf of the FF+ that Parliament exercised crucial oversight over states of emergency, yet it played no role with regards to national disasters. It said this meant that the executive had free rein in a national disaster, even though the regulations may be far-reaching and may encroach on people’s rights.

The court said it was clear that a state of emergency and state of disaster are fundamentally “different legal animals”.

A state of emergency is limited to the direst of circumstances and it may only be declared when the life of the nation is under threat and when it is necessary to restore peace and order.

“Unless these requirements are met, the declaration of a state of emergency would be unlawful.”

A state of disaster, on the other hand, covers a range of circumstances and it may be necessary in the short term to suspend the normal constitutional protections.