In an effort to remedy what they call the collapse in the separation of powers as brought about by the Covid-19 pandemic, the Helen Suzman Foundation (HSF) on Thursday filed papers in the Constitutional Court seeking urgent relief.
According to a statement issued by the foundation, they are asking for an order directing parliament and the executive to take immediate steps to initiate, prepare, consider and pass proper legislation relating to Covid-19.
“The Disaster Management Act vests extraordinarily wide-ranging legislative and executive powers in the Minister of Cooperative Governance and Traditional Affairs, to deal with issues arising out of occurrences like Covid-19. Under the Constitution, however, this law-making and executive power vests in parliament and the executive,” reads part of the statement.
The foundation has taken the position that Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma and her department have unilateral decision-making powers for as long as the Disaster Management Act is in place.
“In the aftermath of the declaration of the state of disaster, HSF submits, parliament and the executive ought actively to have taken steps to reclaim their constitutionally assigned roles. They have failed to do so. Instead, for two 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.”
However, the state has often informally countered that Dlamini-Zuma has been gazetting laws agreed upon by the council, and she does not make these decisions alone.
This headline is wrong. The minister of COGTA signs all the regulations because the national disaster act falls under her department but she doesn't make the regulations as an individual. So why make it seem like this is her decision alone? https://t.co/7YtnGeGOd0
— Dr. Sithembile Mbete (@sthembete) April 20, 2020
“Whilst centralising power in the minister may have been justified by the sudden threat presented by Covid-19, this basic departure from the Constitution’s separation of powers can only endure for as short a period as possible, namely, until parliament and the executive can gather themselves and exercise their legislative and executive functions in relation to Covid-19.”
According to the HSF, parliament has a duty to pass legislation that regulates concretely the state’s response to the threat posed and harm caused by Covid-19, while the executive has a duty to prepare and initiate this legislation for consideration, debate and ultimate passage by parliament.
“The executive would then have a duty to implement that legislation. Only by performing these duties will the current collapse in the separation of powers be remedied and South Africa’s democracy restored to constitutional normalcy. In this way, in terms of the constitution, both parliament and the executive have a central role to play in the state’s response to Covid-19.”
“Having failed to reclaim their constitutional powers, the HSF has been forced to approach the Constitutional Court, seeking an order compelling them to do so.”
The foundation has called their application “pro-government and pro-law.”
Based on HSF’s understanding that though the government has three parts – executive, judicial and parliamentary – under the current constitution and that it is parliament’s responsibility to make the laws, the foundation has vowed to “get the whole structure of our government working again, parliament included”.
The HSF went on to state that their Constitutional Court endeavour was not an attack on the policy choices or value judgments embodied in existing regulations. Additionally, the HSF said they understood that the current regulations would not fall away before parliament passed new required laws should their application be successful.
The HSF’s application is similar to that of a yet unnamed group of people calling themselves “concerned citizens” who have banded together to challenge the legality of the NCC and all the decisions it has made thus far.
The DA has also criticised Cabinet for taking over the legislative role normally vested in parliament.
A group of concerned citizens have decided to file a court application against the President and the Minister of COGTA ( Minister Dlamini-Zuma). We are challenging the legality of NCCC and all the decisions it has made. pic.twitter.com/bUOWQA3HI3
— Duwayne (@DuwayneEsau) May 20, 2020
Speaking to the Citizen, Lungi Mtshali of the department of cooperative governance and traditional affairs said that the HSF would have done well to try to understand how the law-making process works under the current circumstances before filing their application.
According to Mtshali, the minister merely promulgates regulations that have been discussed and agreed upon by cabinet.
Mtshali further explained that the minister’s role was simply to ensure that there was consistency with the regulations being passed and that the regulations of one department did not interfere with that of another by undoing or impeding the work being done to limit the spread of the coronavirus.