The Helen Suzman Foundation (HSF) is seeking a court order directing the Executive and Parliament to reclaim their respective powers in the legislation of South Africa’s COVID-19 response.
In a statement on Tuesday, HSF said the Disaster Management Act “vests extraordinarily wide-ranging legislative and executive powers” in the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma.
Separation of powers
These powers were justified at the start of the pandemic, HSF said, but “can only endure for a limited period.” To restore separation of powers and constitutional normalcy, the Executive therefore ought to have initiated legislation to regulate its COVID-19 response.
Parliament would then debate and pass such legislation for the Executive to implement, HSF argued, adding that both the Executive and Parliament failed to take these steps after the declaration of the national state of disaster.
“Instead, for four months, they permitted the Minister, alone or with the National Coronavirus Command Council, to legislate the state’s response to COVID-19. They appear content to allow their ultimate authority to be exercised by others, seemingly for as long as COVID-19 poses a threat,” the Foundation said.
HSF filed the application at the Pretoria high court on 24 July after its application for direct access at the Constitutional Court failed earlier this month.
It cited President Cyril Ramaphosa, National Assembly Speaker Thandi Modise, the Cabinet, Chairperson of the National Council of Provinces Amos Masondo and Dlamini-Zuma as respondents.
Cabinet ‘must initiate legislation’
It wants the court to issue an order directing the Cabinet to initiate legislation regulating the government’s COVID-19 response and Parliament to pass it.
The Foundation said, “The HSF desires a restoration of power to Parliament and the Executive, functioning as each is required by the Constitution.
“No explicit attack is made on the policy choices or value judgments embodied in existing regulations, nor will the regulations fall away before Parliament passes the required laws. The application seeks to restore the primacy of our Constitutional dispensation.”
The government has not yet indicated whether it would oppose the application or not. This is the latest court challenge against various aspects the government’s COVID-19 response.
It currently faces two other challenges against the cigarette sale ban – one by Fair Trade Independent Tobacco Association (FITA), which is approaching the Supreme Court of Appeal, and another by BAT South Africa.