News24 17 June 2020

The urgent court application by the FF Plus challenging the constitutionality of the Disaster Management Act is due to be heard on Wednesday morning. 

The party is requesting that the North Gauteng High Court in Pretoria declare section 23(8) of the act unconstitutional and invalid. It is under this act that the government has implemented a nationwide lockdown to curb the spread of the coronavirus. 

The FF Plus argued the government’s extension of the national state of disaster was subject to debate and a resolution by Parliament. 

“There was no plenary, debate or even a briefing of a committee of Parliament preceding the declaration of a national state of disaster on 15 March 2020. The regulations published in terms of the Disaster Management Act on 17 March 2020 were not scrutinised by any form of a legislative oversight mechanism.”

According to party leader Pieter Groenewald, the balance of public interest between curbing the spread of the virus and unlocking the economy to prevent the loss of livelihoods, and subsequently lives, should come into play.

Groenewald argued parliamentary oversight was curtailed to the detriment of the Constitution and its supremacy thwarted.

“If the derogation is done through the vehicle of the Disaster Management Act [DMA], the absence of similar provisions as found in the State of Emergency Act, renders the DMA superior to the Constitution and clothes the relevant minister with powers that Parliament and the president do not have. Such powers would not flow from or be countenanced by the Constitution.”

The FF Plus argued it was a “fallacy” Parliament had exercised any oversight during Covid-19.

The party added out of 866 questions, which were asked by members of both Houses to the executive since 14 April, 363 have remained unanswered at the time of filing their affidavit.

Speaking in a virtual Youth Day rally, EFF leader Julius Malema said the leadership of the country has made reckless decisions that jeopardise lives.

In a responding affidavit, National Assembly Speaker Thandi Modise argued Parliament did not go into a hiatus on the declaration of a national state disaster, but held the executive to account and thereby exercised effective oversight over the executive and Constitution. 

Modise challenged claims made by Groenewald, arguing mechanisms were available to Parliament when it disapproved of ministers’ conduct. 

“Although the DMA does not explicitly make provisions for parliamentary oversight, that obligation is imposed on Parliament by the Constitution.

“It is worth emphasising that the issues on which Parliament and its committees are briefed on by the ministers and department are largely at the instance of Parliament and its committees.

“Nowhere in the rules and procedures of Parliament are Members of Parliament and committee constrained from raising any issues or questions they deemed appropriate, including questions of constitutionality and legality of either Covid-19 regulations or conduct of the executive in respect to implementation of Covid-19 regulations.”

This as the DA is fighting the constitutionality of the DMA in the Constitutional Court.

The party applied for direct access to the Constitutional Court on an urgent basis to challenge the constitutionality of the DMA, saying its application raised “fundamental questions about the separation of powers between Parliament and the executive”. 

But, responding on behalf of the government, Wim Trengove SC said Parliament delegated the management of the disaster to the national executive and might, at any time, withdraw, amend or qualify its delegation.

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