The DA has asked the Constitutional Court to order parliament to amend the Disaster Management Act, which it argues gives the minister of co-operative governance & traditional affairs too much power.
The apex court heard submissions on Thursday on the DA’s legal challenge against the government on the act, which it wants to be declared unconstitutional.
The case arises from the party’s disgruntlement over the Covid-19 pandemic lockdown, during which regulations about permitted actions by citizens and businesses were implemented for more than two years under the act.
The implementation of the act was headed by Nkosazana Dlamini-Zuma, former minister of co-operative governance & traditional affairs, who decided on regulations that affected business operations countrywide and citizens’ ability to move or trade.
DA attorney Gilbert Marcus argued the minister’s power was excessive and unconstitutional in that it was decided by one person instead of parliament, which was elected by citizens.
He said parliament, though the watchdog of the executive and government, had no power to supervise the minister in implementing the act nor cut the disaster act implementation period if it disadvantages citizens.
Marcus described it as a shortfall in the constitution that a minister could limit citizens’ constitutional rights without parliament’s approval.
“The act is an unconstitutional delegation of parliament’s legislative power to the executive. It gives the minister exceedingly broad powers to then legislate every aspect of the lives and businesses of South Africans,” Marcus said.
He said the minister’s power in essence was creating a shadow of “an unelected legislature” in her office.
“There is no power vested in parliament to override the minister’s declaration of the disaster or its extension. That is the heart of the problem. It is the balancing of a wide legislative competence in the absence of sufficient safeguards.”
The DA asked the court to give parliament a veto power to stop the act until the National Assembly made amendments for the legislator to supervise the act.
Justice Leona Theron asked Marcus whether the constitution provided for the court to give parliament “higher power” to change the act and whether in giving parliament the veto power the court would not be changing the constitution as there was no provision for the request in legislation.
Legislative amendments
Marcus argued that though there was “veto power” in parliamentary laws, the court could conduct a judicial review of the act. He said in the remedy the party was not asking the court to change the constitution but to allow parliament to make legislative amendments to the act.
“It may well be that you are persuaded that our argument is good, but our remedy is bad. If our remedy is bad, there are many options available. The first is to suspend the act and allow parliament an appropriate time in which to correct the error,” he said.
“The remedial power is that of the court and the court alone.”
Theron said there was a concern regarding the minister’s legal power in extending the declaration of the act.
Wim Trengove, representing the state, said the minister was limited by the act, which stipulated that it may be implemented when “special circumstances warrant” and could not extend the declaration if no circumstances warrant it.
Section 27 of the act reads: “In the event of a national disaster, the minister may by notice in the [Government] Gazette declare a national state of disaster if (a) existing legislation and contingency arrangements do not adequately provide for the national executive to deal effectively with the disaster; or (b) other special circumstances warrant the declaration of a national state of disaster.”
He argued that the minister did not decide on her own when implementing the act but was accountable to the executive.
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