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DA wants Disaster Management Act declared invalid, says it gives NDZ 'too much power'

It's not constitutional, party tells top court

17 May 2020 - 00:00 By THABO MOKONE
The DA says the disaster management act is allowing the minister of co-operative governance and traditional affairs, Nkosazana Dlamini-Zuma, to implement regulations that are not subject to parliamentary scrutiny.
The DA says the disaster management act is allowing the minister of co-operative governance and traditional affairs, Nkosazana Dlamini-Zuma, to implement regulations that are not subject to parliamentary scrutiny.
Image: SIMPHIWE NKWALI/ Sunday Times

The Disaster Management Act is a dangerous piece of legislation that gives a single minister powers trumping those of the president and parliament.

This is what the DA is arguing in its application for direct access to the Constitutional Court on an urgent basis as part of its bid to have the act, which is the anchor of "draconian" national lockdown regulations, to be declared invalid and unconstitutional.

The DA is arguing that section 27 of the act has turned the national lockdown into "a de facto state of emergency" by allowing the minister of co-operative governance & traditional affairs, Nkosazana Dlamini-Zuma, to implement regulations that are not subject to parliamentary scrutiny.

The official opposition is also arguing that the act gives Dlamini-Zuma unfettered powers that are not consistent with those designated to the president and parliament in terms of the State of Emergency Act of 1997 and section 37 of the constitution, which both allow for parliamentary scrutiny through debates in the National Assembly.

National lockdown regulations, such as a curfew between 8pm and 5am, limited exercise between 6am and 9am, and those dealing with what kind of clothing or food people are allowed to buy, have been the subject of great controversy for several weeks.

The DA argues in its court papers that such regulations, and the deployment of more than 70,000 soldiers to enforce them, amount to a state of emergency and not a disaster as declared by the government.

The DA says they are an infringement of the constitutional right to freedom of movement, arguing that a time limit on exercise and the curfew are irrational, as medical science shows that the risk of spreading the coronavirus is far greater indoors than outside.

In his affidavit filed in the Constitutional Court on Friday, DA interim leader John Steenhuisen contends that the act should be declared unconstitutional as it allows Dlamini-Zuma to consult only "a coterie of ministers" and not parliamentarians in drafting and implementing lockdown regulations.

"As I have explained, the Disaster Management Act insists on no form of parliamentary oversight at all. It allows for the creation of a de facto state of emergency without any compliance with the constitutional requirements for such a state of emergency. On this basis, too, section 27 is unconstitutional," Steenhuisen argues.

He says Dlamini Zuma and other ministers would not be in a position to chop and change lockdown regulations if they were subject to parliamentary accountability before doing so.

"Parliament has conferred extremely wide and far-reaching powers on the minister. Indeed, the sole reporting obligation in the act is the duty on the minister to - once a year - submit a report to parliament on the activities of the National Disaster Management Centre.

"This is self-evidently insufficient to allow the National Assembly to effectively scrutinise and oversee the executive action that has been taken under the act.

"Nor is it adequate that various ministers have engaged in briefing sessions with various parliamentary committees on their activities in relation to the state of national disaster. While such briefing sessions are to be welcomed, they have no teeth. Even if an entire committee were to disagree with the steps a minister had taken, that would have no legal effect unless the minister of his or her own accord decided to change tack."


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