Another win for government as FF+ challenge to Disaster Act is dismissed
The full bench of the high court in Pretoria has dismissed a challenge brought by the Freedom Front Plus against the government's response to the Covid-19 pandemic.
Two weeks ago, the court - comprising Gauteng judge president Dunstan Mlambo, judge Jody Kollapen and judge Raylene Keightley - heard an application by the party, seeking an order declaring that sections of the Disaster Management Act (DMA) were inconsistent with the constitution.
The FF+ argued that some of those sections did not make provision for various safeguards that are to be found in the constitution, which deals with states of emergency.
It also sought that the decision taken by Cogta minister Nkosazana Dlamini-Zuma on March 15 to declare a national state of disaster, to augment measures already taken by other organs of state to deal with the Covid-19 pandemic, be declared inconsistent with the constitution.
The FF+ stated that under a state of emergency, the constitution builds in safeguards to the exercise of executive power precisely because of the severe restriction on fundamental rights inherent in a state of emergency.
The party's complaint was that the act does not do so.
The FF+ argued the state of emergency may only be extended after debate in the National Assembly, whereas under the act, Dlamini-Zuma may simply extend a state of national disaster - and she may do so unilaterally.
The party also said a competent court may decide on the validity of a declaration of a state of emergency or action taken under it. However, there was no similar provision pertaining to the declaration of a state of disaster, the FF+ argued.
The court dismissed the FF+ application.
"Once the fundamental distinction between a state of emergency and a state of disaster is understood, this complaint loses its force," ruled the court.
"It is because of the constitutional deviations that are permitted under a state of emergency that parliamentary oversight is expressly included in section 37 [of the constitution]."
The court said where no such deviation was permitted, it was not necessary to make special provision for parliamentary oversight.
"That oversight is a normal component of our constitutional framework," it said.
The court said an explanatory affidavit filed by the speaker of the National Assembly and the chairperson of the National Council of Provinces (NCOP) recorded that during the current state of national disaster, parliamentary oversight had been exercised through the various portfolio committees of the National Assembly, as well as through the various select committees of the NCOP.
"For all of these reasons, we agree with the submission made by the [government parties] that the applicant’s attack on the Disaster Management Act is founded on a misconception and is fundamentally flawed," it said.