DA asks Constitutional Court to declare Disaster Management Act unconstitutional

The DA has asked the Constitutional Court to declare the legislation governing SA’s lockdown unconstitutional, as it breaches the doctrine of separation of powers, and wants the apex court to include parliamentary oversight.  

In Court papers filed on Friday afternoon, the party asks that the case challenging the constitutionality of the Disaster Management Act be heard directly and on an urgent basis by the Court.

SA has been under a strict national lockdown, enforced under the act, which provides wide emergency powers in terms of what the executive is able to do during a state of disaster under section 27. It is this section that the DA wants the Court to declare unconstitutional.

The party wants the act to include parliamentary oversight and powers that would result in parliament being able to veto the regulations, declarations and extensions of the state of disaster under the act, if it does not agree with it.  

In the notice of motion, the DA said it does not want the Court to invalidate the declarations, regulations and directions given before the order was made.

In the founding affidavit, DA leader John Steenhuisen said the case is not about the merits of the lockdown, but rather about whether there was parliamentary oversight and involvement in the legislation, which is being made “almost daily by the executive”.

Steenhuisen argued in the affidavit that there is no effective oversight and involvement under the act, and that it gives the executive the power to govern by regulations and directions without any role for parliament. 

Parliament is the legislative arm of the state and is responsible for passing statutes and laws governing the country.

The Disaster Management Act of 2002 aims to provide for an integrated and co-ordinated disaster management policy that focuses on preventing, among other things, reducing the risk of disasters and mitigating their severity. 

It is the first time the act has been used to this extent, which has seen an unprecedented national lockdown that has severely curtailed the freedoms of people in SA. ​

Steenhuisen said the act violates the doctrine of the separation of powers in three ways: the act is an unconstitutional delegation of powers to the executive; it permits the creation of something like a state of emergency without the oversight role provided for it; and it does not enable the National Assembly to scrutinise and oversee executive action.

Steenhuisen said the relief sought from the Court would not bring an end to the lockdown or any aspects of the regulations, but would “make sure that effective parliamentary oversight over the state of national disaster and the lockdown regulations is put in place”. 

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