Ramaphosa must get Outa here with his state of disaster – urgent interdict filed

The lawfulness of President Cyril Ramaphosa’s declaration of a national state of disaster was challenged on Thursday when Outa (Organisation Undoing Tax Abuse) lodged an application for an urgent interdict against any further momentum on the matter.

Last week Ramaphosa called the state of disaster in response to the country’s energy crisis during his state of the nation address. It was news to Eskom, who had presented a workable action plan to parliament days before the political segue, to manage and mitigate the ginormous challenge South Africa faces.

Why Outa is challenging the state of disaster

A national state of disaster allows for any decisions by government to pass unfettered, with little to no oversight or recourse, except through the courts.

South Africans learnt this the hard way when the sale of cooked food and roast chicken was banned at the genesis of the Covid-19 lockdown.

In its statement Outa said:

“Outa believes the decision to declare the disaster was irrational, arbitrary and unlawful. It is the result of a crisis created by the government itself which has been more than 15 years in the making. It is unnecessary because laws already exist to enable urgent action to address the energy crisis.”

Outa added more concerns: “The state of disaster grants extraordinary powers to officials to make far-reaching decisions without parliamentary oversight, which is a real concern in the light of the extensive looting enabled by emergency procurement during the Covid-19 state of disaster.”

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Under a state of disaster, government can exercise full control over the movement of people and goods, deploy the military under civil circumstance. It gives authorities the power to commandeer private property and resources, including human capital, and to set aside laws and regulations as it sees fit.

Amid all this, it also makes allowance for relief efforts.

In Outa’s founding affidavit it negates the need for a state of disaster and cited several reasons for its argument. The organisation notes that there is already legislation in place that allows government to deal with the crisis effectively.

The Electricity Regulation Act already allows government to enter into emergency agreements concerning electricity supply and the president’s 2022 Energy Action Plan, adopted by Parliament, was created precisely to avoid a state of disaster.

Furthermore, Outa said that the state of disaster cannot be called merely for speculative reasons, such as the fear of a total blackout. The organisation refers to yet another plan, the Integrated Resource Plan, as also containing more than adequate instruments to deal with the energy challenge.

Those who created problem in charge of fixing it

Economist Dawie Roodt agreed, saying that a state of disaster will not fix anything, because there is nobody competent enough that remains to implement anything.

He said: “The reality is that there is an energy crisis, but the characters in control are incompetent and responsible for the mess in the first place. Placing Eskom in business rescue may be a better solution.”

The personal protective equipment (PPE) scandals and billions lost under the previous state of disaster, during the pandemic, shows the dangers of setting aside the rules and circumventing the law, legally.

The strict Covid-19 lockdown measures also saw the death of many businesses, job losses and economic hardship for citizens, with some of the impact still resonating today.

It was the proverbial cherry on top after a decade of economic shrinkage and blackouts that started 15 years ago already. The energy crisis is not a surprise. Covid-19 was.

Roodt said: “This can create another opportunity for government to tweak the economy to suit their psyche and ideological purpose. It’s all happened before in various guises, and the results are always a disaster.”

Setting dangerous precedent

Advocate Stefanie Fick, Outa executive director, said: “If the decision to declare a national state of disaster due to this self-created crisis by the government is allowed to stand, it will open the floodgates for further such disasters to be declared in various other sectors that suffered from similar dysfunction, mismanagement, and corruption.

“Declaring a national state of disaster will in effect become a tool for the government to circumvent accountability and hide behind the excuse of a disaster to reach an apparent ‘quick fix’ for problems that were years in the making.”

Fick added: “We are bringing this application because Outa will not stand by when government grants itself extraordinary powers with reduced oversight to deal with a self-created energy crisis.”

Disaster Management Act’s legality questioned

In response, DA federal chair Helen Zille told The Citizen: “The disaster management act is unconstitutional in our view.”

The DA headed to the Constitutional Court in 2021 to kickstart a process to have the Disaster Management Act declared unconstitutional. The party cited the wide-ranging powers that it lends government, its potential for abuse, and almost no checks and balances.

It also raised concerns over the protection of civil liberties during a state of disaster.

Roodt weighed in and said: “This government thinks that the spoken word creates action and relief, but they don’t implement anything. In fact, they have no clue how to, yet are particularly brilliant at disrupting stuff.”

Roodt said the real solution lies in fixing politics.

Fick said: “There is no indication whatsoever that the declaration of a state of national disaster will make any difference to the situation, other than to open up the procurement process and method of delivery to a potential new wave of corruption similar to what was seen during the Covid-19 national state of disaster.”

In the affidavit Fick also reminded that the state of disaster came as a surprise to Eskom as it did to the rest of the country.