ConCourt asked to 'throw out' DA's court challenge

The Constitutional Court should throw out the DA's court challenge to the Disaster Management Act because the relief it seeks would, if granted, risk dictating to parliament how it should hold the executive to account.

This is according to papers filed by the presidency in response to a DA application to have some parts of the act declared unconstitutional.

The government is also arguing that the DA's application is not urgent, because the opposition party only began taking issue with the legislation two months into the national lockdown - and supported the act when it was adopted in 2002.

It has asked the court to dismiss the DA's application for direct access to the court to challenge the constitutionality of the act, with costs. 

In its application the DA argues that the act gives co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma wide-ranging powers to declare national lockdown regulations that amount to a state of emergency, without subjecting them to parliamentary scrutiny as outlined in the constitution.

The government's lawyers have asked the court to reject the DA's argument. They liken the DA's argument to a tantrum thrown by a child not getting their own way.

"This case is born of the frustration of a minority party that insists that it should have a say in the management of the national disaster despite the fact that parliament (with the support of the DA) entrusted its management to the national executive.

"The DA claims that parliament is now a helpless bystander. But that is not so. Parliament delegated the management of the disaster to the national executive and may, at any time, withdraw, amend or qualify its delegation.

"The DA's real problem is that parliament is a democratic institution where minority parties do not always have their way," the government's written submission reads.

"The DA's remedy would, on the clear jurisprudence of this court, constitute an unlawful intrusion into the exclusive domain of the National Assembly."

In her papers, speaker of the National Assembly Thandi Modise, who has also been cited as a respondent, says it is not true that parliament has been unable to hold the government accountable over the lockdown regulations. Modise also wants the DA's application dismissed.

"In its application, the DA seeks a finding from this court that as part of its oversight, parliament should be required to veto regulations that are adopted under the act," Modise's submission reads.

"That raises issues relating to the balance between separation of powers on the one hand, and the accountability of parliament on the other.

"There is in any event no comparison between a state of emergency on the one hand and a national disaster on the other.

"A state of emergency allows the wholesale suspension of core fundamental rights entrenched in the constitution.

"No wonder that it should require special measures to guard against the abuse of this power.

"The [Disaster Management Act], on the other hand, does not permit any derogation from any of the provisions of the constitution. The two are accordingly not comparable."