Pretoria – The Gauteng High Court, Pretoria, has dismissed the legal challenge by the Freedom Front Plus to declare the Disaster Management Act and lockdown regulations unconstitutional.
A full Bench, led by Judge President Dunstan Mlambo, was again called on an urgent basis to rule on the legality of the State’s response to the Covid-19 crisis.
The court agreed with the government that the political party’s attack on the Disaster Management Act was founded on a misconception and fundamentally flawed.
The FF+ had challenged the validity of the National Disaster Management Act and argued that the legislation gave unrestricted powers to Minister of Co-operative Governance and Traditional Affairs Dr Nkosazana Dlamini Zuma.
The party’s argument also included that while a national state of emergency had checks and balances built in to ensure the rights of citizens, a national state of disaster gave too much power to the minister to trample on the rights of citizens.
The court was also asked to order President Cyril Ramaphosa
to summon the National Assembly
to an extraordinary sitting to debate how the Covid-19 pandemic must be dealt with.
It was argued on behalf of the FF+ that Parliament exercised crucial oversight over states of emergency, yet it played no role with regards to national disasters.
It said this meant that the executive had free rein in a national disaster, even though the regulations may be far-reaching and may encroach on people’s rights.
It said that under a state of disaster the powers of Dlamini Zuma were more powerful than those of President Cyril Ramaphosa.
Its stance is that the declaration of a state of disaster to deal with Covid-19 is thus unconstitutional.
The court said it was clear that a state of emergency and state of disaster are fundamentally “different legal animals”.
A state of emergency is limited to the direst of circumstances and it may only be declared when the life of the nation is under threat and when it is necessary to restore peace and order.
“Unless these requirements are met, the declaration of a state of emergency would be unlawful.”
A state of disaster, on the other hand, covers a wide range of different circumstances and it may be necessary in the short term to suspend the normal constitutional protections to restore the constitutional state.
The court said the regulations under the Disaster Management Act may limit some rights for a while, but fundamental rights remained intact as any limitation may still be tested in law against the Constitution.
The government told the court that during the state of disaster parliamentary oversight had been exercised through the various portfolio committees of the National Council of Provinces.
In turning down the party’s application to overturn the national state of disaster and its provisions, the court said it was clear there was no need for a state of emergency to be declared unconstitutional.
Judge Mlambo said if Dlamini Zuma had declared a state of emergency herself, she would have probably “found herself in court far more quickly”.
The court postponed indefinitely the second leg of the application in which the FF Plus called for the record of proceedings as to how it was decided to declare a state of disaster, as well as all the scientific evidence the government relied on in declaring the lockdown.