No crime to seek court’s view on use of power in lockdown
More than two months after SA began its state of disaster, public sentiment over the lockdown, which has moved beyond its initial 21 days, has shifted away from general support to increasingly harsher scrutiny of the government.
Some of the main issues have been a lack of oversight on the decision-making of the government, as well as transparency in terms of how bodies such as the national coronavirus command council (NCCC) do their work and exactly what powers the council has and from where they are derived.
While politics has inevitably crept into the response to the lockdown, which has severely curtailed freedoms in SA, the DA has now asked the Constitutional Court to deal with an objective question: is the Disaster Management Act, the legislation under which the lockdown is imposed, constitutional?
While initially it seemed like a no-brainer to declare a state of disaster, as the weeks became months the spotlight has turned to the almost unlimited options provided by section 27 of the act to the minister of co-operative governance & traditional affairs.
The act, which became law in 2002, has never before been used to the extent it has now because of the unprecedented public health threat of Covid-19. As a result it was always going to be difficult to foresee exactly how far its powers go and whether, in the words of DA leader John Steenhuisen, they would create a de facto state of emergency.
In his founding affidavit to the Constitutional Court, filed on Friday, Steenhuisen said the act violates the doctrine of the separation of powers in three ways: the unconstitutional delegation of powers from the legislative arm to the executive; permitting something similar to a state of emergency; and the inability of the National Assembly to scrutinise and oversee executive action.
What the DA asks is simple: parliament needs to have an input and say in decisions taken, including on any extension of the state of disaster, and should be able to effectively veto decisions it does not agree with.
This, after all, is what would happen if a state of emergency were declared. It can then only be for 21 days, after which a majority of the members of the National Assembly would have to agree to a further extension.
Steenhuisen said in the application that it is impossible for parliament to predict the precise nature of a natural disaster and to provide a clear legislative framework to deal with it. He accepted the executive would have to be able to move with speed in such a state of disaster.
“But if parliament is going to delegate such wide legislative powers to the executive for these reasons, then it is essential that parliament also puts in place appropriate oversight mechanisms over the delegated legislation that results to preserve the proper balance between parliament and the executive,” Steenhuisen said.
While it would go without saying that parties are completely within their rights to file court challenges to legislation used, and how the government acts during the state of disaster, without people being accused of trying to undermine efforts to save lives, this has not been the case in this instance.
When advocates Nazeer Cassim and Erin Dianne Richards raised legitimate issues with the NCCC, such as how it functions and who is on the council, director-general in the presidency Cassius Lubisi resorted to an antagonising tone in his response.
He ended his letter by saying that if his answers were insufficient, Cassim and Richards were invited to propose alternatives rather than threaten litigation. “Their insistence on putting in jeopardy all measures taken to save SA lives and ensure security of public health is not commensurate in our respectful view with their positions as officers of the court,” Lubisi said.
Lubisi’s comments were clearly outrageous and wrong.
On Monday President Cyril Ramaphosa used his weekly newsletter to comment on the court challenges during the lockdown, after he was asked by a journalist last week if he was concerned over the pending litigation relating to the Disaster Management Act.
“While we would prefer to avoid the need for any legal action against government, we should accept that citizens who are unhappy with whatever action that government has decided on implementing have a right to approach our courts for
IT IS ESSENTIAL THAT PARLIAMENT PUTS IN PLACE APPROPRIATE OVERSIGHT MECHANISMS OVER THE DELEGATED LEGISLATION
any form of relief they seek,” Ramaphosa said. “This is a normal tenet of a constitutional democracy and a perfectly acceptable practice in a country founded on the rule of law.”
He said as the country navigates the pandemic and the responses to it, which have already placed enormous strain on SA’s society and its institutions, the constitution is “our most important guide and our most valued protection”.
“Our robust democracy provides the strength and the resilience we need to overcome this deep crisis,” he said.
Amid these trying and everchanging times, Ramaphosa did some much needed damage control in his letter, as it once again emphasised that SA remains a constitutional democracy in which dissent and a plurality of views are not a sin, but are welcomed.