The Helen Suzman Foundation (HSF) has accused President Cyril Ramaphosa and his cabinet of failing to execute their duties.
The accusation is contained in papers filed before the high court in Johannesburg on Tuesday, with the foundation also stating that the president and his cabinet suffered from a misunderstanding of the Disaster Management Act and its intentions.
As part of the latest court battle against the government’s Covid-19 laws, the foundation wants parliament and the executive to take back what it described as “staggering powers” given to co-operative governance and traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma amid the coronavirus disaster.
The current Disaster Management Act gives the power of making regulation decisions regarding the coronavirus pandemic to the minister. According to the foundation, this has left parliament and the cabinet “missing in action”.
“The president, as the head of the national executive, along with the cabinet of the Republic of South Africa, has failed to fulfil the obligation under section 85(2) of the constitution to prepare and initiate legislation that regulates the state’s response to the threat posed and the harm caused by Covid-19,” the papers read.
It also said parliament had “failed to fulfil its obligations … of the constitution, to consider, initiate and prepare and pass legislation that regulates the state’s response to the threat posed and harm caused by SARS-CoV-2 and Covid-19”.
The foundation wants a declaration that the powers of the minister under the act be terminated. It is seeking to have this done on an urgent basis.
“This application is entirely and only about a narrow but fundamental question to do with the structure and the location of power under the constitution,” said the foundation.
“The HSF approaches this court, in other words, not because it advances a substantive view about what the state has done in response to Covid-19, but because it objects to how the state has responded — or rather how parts of the state have failed to respond.”
Of the claimed misunderstanding, the foundation said it was evident that parliament and the national executive believed that the minister, who operates alongside the national coronavirus command council (NCCC), can exercise her power for as long as Covid-19 presents a threat.
This, according to the foundation, should not be the case. “This could be for months or even years, meaning that the state’s response to Covid-19 will remain exclusively within the subjective purview of the executive branch of the government,” it said.
It highlighted how Cogta and the NCCC had passed no fewer than 25 broad regulations since the start of the pandemic “without any involvement from parliament”.
The foundation had previously approached the Constitutional Court, seeking direct access to it. The court denied them an audience, saying their application did not engage its exclusive jurisdiction and it was not in the interest of justice to grant them leave to be heard.
It said it believed that the Disaster Management Act which placed power in Dlamini-Zuma’s hands was meant to have only been a temporary measure.
“It is now critical that the proper location of that power be restored — not only in the present crisis (to ensure all benefits that this court has stressed about the importance of deliberation in the legislative process), but for the long-term importance of the constitutional project.”
It said the implications of this not being rectified earlier was “detrimental”, suggesting this had led to a lack of accountability, responsiveness and openness from the executive.
“These constitutional failures and the state of affairs they have brought about know no parallel in our constitution’s history,” it added.