President Cyril Ramaphosa has filed a notice with the Constitutional Court, opposing the DA’s challenge of the Disaster Management Act.
The president is calling on the apex court to refuse the DA’s application for direct access.
The government argues that parliament, and not the judiciary, can devise mechanisms for oversight over the executive.
In court papers filed on 19 May, Ramaphosa and Cooperative Governance Minister Nkosazana Dlamini-Zuma argue that the DA’s application is not urgent and does not warrant the Constitutional Court’s truncated time periods.
They argue that the legislative powers of the Disaster Management Act (DMA) are justified to respond promptly to national disasters.
In a 111-page affidavit to the Constitutional Court, DA interim leader John Steenhuisen argues the DMA violates the constitutional principle of the separation of powers, because there is no effective parliamentary oversight.
Steenhuisen said the Act allowed for the unconstitutional delegation of parliament’s powers to the executive and gave Dlamini-Zuma “exceedingly broad powers”.
The DMA also did not allow for the oversight role that the Constitution required in a state of emergency, he submitted.
In addition, Steenhuisen argued that the National Assembly was not allowed to scrutinise executive action, as was constitutionally required.
The government’s legal team, however, has countered that the DA supported the enactment of the DMA in 2002 and failed to take any legislative or judicial steps to address its shortcomings.
It also argues that the DA waited for two months of the lockdown to make its urgent application.
“There is no justification amid the current crisis to compel parliament and the national executive to respond to the application within only five days,” the state argues.
The government had until 25 June to file its responding affidavits.
In a separate application – filed with the Gauteng High Court in Pretoria to challenge the curfew, transport and exercise regulations – DA MP Glynnis Breytenbach said the regime under the Covid-19 regulations resembled a state of emergency, but was not subject to the same safeguards.
She added that, under the DMA, Dlamini-Zuma had broad and intrusive regulatory powers that were not subject to parliamentary oversight.
The government has, however, disputed this, saying that a state of emergency would have suspended important provisions of the Constitution. The government also argues that the DA overlooks provisions afforded to parliament to scrutinise lockdown regulations.