The Department of Co-operative Governance & Traditional Affairs (Cogta) has welcomed the Supreme Court of Appeal’s dismissal of the DA’s appeal over the constitutional validity of Section 27 of the Disaster Management Act (DMA) and the Covid-19 emergency regulations.
The Cogta Minister at the time was Nkosazana Dlamini-Zuma, who had instituted the restrictions after the President’s declaration of a national lockdown during the pandemic, reports the Cape Times.
The DA had argued that given the breadth of the powers conferred on the Minister, it was constitutionally required that the DMA ensures National Assembly has the power, by resolution, to disapprove and undo regulations enacted by the Minister.
The respondents, including the President, the Minister, and the Speaker of the National Assembly, argued that the very purpose of a state of emergency was to permit a suspension of the normal constitutional order, which is not the case in a state of disaster.
They said a state of emergency was limited to the direst of circumstances and may only be declared when the “life of the nation” was under threat.
The Minister had published the disaster management regulations on 29 April 2020, and these were subsequently amended to ease the lockdown restrictions in line with the alert levels in the risk-adjusted strategy.
Thereafter, the Minister promulgated regulations as and when the need arose in accordance with the alert levels or the easing of restrictions.
During alert level four lockdown, the DA filed an application seeking an order declaring section 27 of the DMA to be unconstitutional and invalid.
They were initially unsuccessful in the High Court and decided to appeal.
The appeal brought forth several issues for consideration by the court, questioning the constitutionality of section 27 of the DMA, and challenging the provision on grounds that it allowed for the establishment of a de facto state of emergency without adhering to constitutional protocols for such declarations.
They also contended that the provision failed to mandate the National Assembly to fulfil its oversight duties as required by specific sections of the Constitution.
Ultimately, the majority judgment found: “The DA’s contention that section 27 of the DMA enables a situation in which ‘government can grant itself dictatorial powers’ lacks merit and, as a result, falls to be rejected.
“It is clear that the DMA creates and empowers a range of administrative bodies. The minister, in her capacity as the chairperson of the intergovernmental committee, plays a key role in those administrative bodies.
“At the outset, it bears reiterating the trite principle that section 27 must not be interpreted in isolation but in the context of the whole act having regard to its overarching purpose.”
Tsekiso Machike, spokesperson for Cogta Minister Thembisile Nkadimeng, said: “We welcome the judgment by the SCA.”
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