The DA notes the order of the Constitutional Court in which our application for direct access to the court in order to contest the constitutionality of certain aspects of the Disaster Management Act was dismissed.
What this now means – having been denied direct access to the country’s highest court – is that we will have to make our way more slowly through the court system in order to contest an issue with clear and urgent constitutional implications. This will delay our action, but it most certainly will not deter us.
It is our view that, in its current guise, the Disaster Management Act, under which a State of Disaster was declared in response to the Covid19 pandemic, does not pass constitutional muster. The reason for this is that it has no provision for parliamentary oversight, and this means that the legislative and executive functions of the state have effectively been merged. Government’s National Coronavirus Command Council (NCCC) now fulfils both these roles.
This has empowered the Minister of Cooperative Governance and Traditional Affairs (COGTA), Nkosazana Dlamini-Zuma, to issue directives with no parliamentary oversight – directives that include extending the State of Disaster indefinitely. Not even a State of Emergency places such unfettered and indefinite power in the hands of a minister or the Executive.
The president has asked South Africans to give up many of their rights for the fight against Covid19, and they have so. But this has enabled the COGTA Minister to concentrate huge power in her own hands, while circumventing the legislative branch of government entirely.
The reason we applied for direct access to the Constitutional Court was to urgently remedy this flaw. The relief we sought was for the same provisions of oversight that exist during a State of Emergency to be read into the Disaster Management Act. This is still our aim, but we now have to take the longer route to get there.