The DA has lost its legal bid to challenge the Department of Co-operative Governance and Traditional Affairs (Cogta) minister’s powers concerning the Disaster Management Act (DMA) in relation to the Covid-19 alert level restrictions.
The Supreme Court of Appeal (SCA) dismissed the party’s appeal over the constitutional validity of section 27 of the Disaster Management Act 57 of 2002.
Among others, the DA argued that given the breadth of the powers conferred on the minister, it was constitutionally required that the DMA ensures that the National Assembly has the power, by resolution, to disapprove and undo the regulations enacted by the minister.
The respondents, including the president, the minister, and the Speaker of the National Assembly argued that the very purpose of a state of emergency was to permit a suspension of the normal constitutional order, which is not the case in respect of the state of disaster. They asserted that a state of emergency was limited to the direst of circumstances and may only be declared when the “life of the nation” was under threat.
The case has its roots in the Covid-19 pandemic in 2020, as the minister at the time, Nkosazana Dlamini Zuma, made regulations embodying a national public health response to the Covid-19 pandemic – the Covid-19 regulations – which were followed by the president’s declaration of a national lockdown.
The country moved between five “alert levels” restricting movement and economic activity. On April 29, 2020, the minister published the disaster management regulations.
These regulations were subsequently amended in order to ease the lockdown restrictions in line with the alert levels in the risk-adjusted strategy.
Thereafter, the minister promulgated regulations as and when the need arose in accordance with the alert levels or the easing of restrictions.
During alert level 4 lockdown, the DA filed an application seeking an order declaring section 27 of the DMA to be unconstitutional and invalid.
They were initially unsuccessful in the high court and decided to appeal.
The appeal brought forth several issues for consideration by the court, questioning the constitutionality of section 27 of the DMA, and challenging the provision on grounds that it allowed for the establishment of a de facto state of emergency without adhering to constitutional protocols for such declarations. They also contended that the provision failed to mandate the National Assembly to fulfil its oversight duties as required by specific sections of the Constitution.
Ultimately, the majority judgment found: “The DA’s contention that s 27 of the DMA enables a situation in which ‘government can grant itself dictatorial powers’ lacks merit and, as a result, falls to be rejected.”
“The mere fact that the DMA does not, unlike the State of Emergency Act 64 of 1997 (SOEA), expressly provide for parliamentary supervision, does not mean that Parliament’s supervision is ousted. This is because parliamentary oversight is constitutionally ordained in ss 42(3) and 55(2)(b) of the Constitution, both of which expressly provide for Parliament’s supervisory role.
“It is clear that the DMA creates and empowers a range of administrative bodies. The minister, in her capacity as the chairperson of the intergovernmental committee, plays a key role in those administrative bodies.
“At the outset, it bears reiterating the trite principle that section 27 must not be interpreted in isolation but in the context of the whole act having regard to its overarching purpose.
“First, the general scheme of the DMA reveals a requirement for the minister to constantly engage with several role-players in her decision-making. Clearly, the exercise of her powers is part of a broader collaborative venture,” SCA Judge President Mahube Molemela found, with Judges Xola Petse, Yvonne Mbatha and Daisy Molefe concurring.
Tsekiso Machike, spokesperson for Cogta Minister Thembisile Nkadimeng, said: “We welcome the judgment by the SCA.”
The DA did not respond to requests for comment by deadline on Wednesday.
Cape Times