n Friday 15 May 2020, the Democratic Alliance – the main opposition party in South Africa’s political landscape – filed papers in the Constitutional Court (the highest court in South Africa) challenging the constitutional validity of s 27 of the Disaster Management Act, 2002 (the DMA).
This constitutional challenge comes a day after the same party had launched a separate application in the High Court (the first in the ascending order of higher courts hierarchy in South Africa). In that application, it challenges the constitutional validity, rationality and reasonableness of:
- certain curfew regulations made by the Minister of Cooperative Governance and Traditional Affairs (COGTA),
- certain transport restriction directions issued by the Minister of Transport, and
- certain e-commerce directions issued by the Minister of Trade, Industry and Competition
ostensibly to “flatten the curve” of covid-19 infections in South Africa.
This is a summary of the Constitutional Court challenge. I express no view on its merits.
Section 27(1) of the DMA confers on the Minister the power to declare a national state of disaster, s 27(2) the power to issue regulations, s 27(3) the purpose for which such regulations may be issued, s 27(4) the power to prescribe penalties for any contravention of regulations, and s 27(5) the right to terminate or extend the declaration of the national state of disaster.
The Relief Sought
In a nutshell, the Democratic Alliance (the DA) wants the Constitutional Court to declare that s 27 of the DMA is unconstitutional and invalid to the extent that it does not permit of Parliamentary oversight to the Executive (that is, the President and his cabinet) in its promulgation of regulations and issuing of directions and notices as measures aimed at addressing covid-19.
In order to remedy the unconstitutionality and invalidity, the DA wants the Constitutional Court to read into s 27 a new provision that confers an oversight role on the National Assembly in relation to the Executive’s regulation-making powers. Specifically, it wants a new provision under s 27 of the DMA to say:
- A copy of any declaration of a national state of disaster in terms of s 27(1) of the DMA, including its extension, must be tabled in Parliament, by the Minister who makes such declaration or effects its extension, as soon as possible after publication of that declaration for consideration, recommendation and approval of Parliament.
- Any regulation made or direction issued under s 27(2) of the DMA must be tabled in Parliament, by the relevant Minister, as soon as possible after the publication thereof for consideration, recommendation and approval of Parliament.
- If Parliament should disapprove of the declaration, extension of a declaration, regulation or direction, such declaration, extension, regulation or direction will cease to be of force and effect from the date that the National Assembly resolves to disapprove of such declaration, extension, regulation or direction, and to the extent to which it is so disapproved.
To that end, the DA asks the Constitutional Court to direct the COGTA Minister to table in the National Assembly the following documents within 3 days of the court’s order for consideration, recommendation and approval:
- the declaration of the national state of disaster in GN 313 GG 43096 of 15 March 2020
- the regulations issued in terms of section 27(2) of the Act published in GNR 480 GG 43258 of 29 April 2020
- all directions and regulations issued under the 29 April 2020 Regulations
In prayer 5 of its notice of motion, the DA asks the Constitutional Court to declare that:
“none of the declarations, regulations and directions made in terms of section 27 of the Act prior to the date of this order are invalidated only by virtue of the [declaration of invalidity of s 27, the reading in of the new provision, and the tabling in Parliament of the 15 March 2020 declaration, the 29 April 2020 Regulations and all the regulations and directions issued under the 29 April 2020 Regulations].”
This prayer may cause some consternation but it need not. Clarity emerges in paragraphs 11 and 12 of the DA’s Founding Affidavit which say:
“This relief would not invalidate any aspect of the Executive’s response to COVIC-19. Everything the President, the Minister and the members of the national ‘Command Council’ have done to date would remain valid unless Parliament determines otherwise. Nor would the relief preclude the Executive from acting with great speed in response to COVID-19 – its power to do so would be fully preserved.
But the relief sought would ensure that the elected representatives of South Africa have an opportunity to engage with, question and ultimately decide whether to disapprove of the measures taken by the Minister. In other words, it would place the debates about these measures where they belong – before the elected representatives of South Africa and in the public eye. I submit that this is what the Constitution requires.”
In short, it appears that what the DA wants the Constitutional Court to do is to leave it to Members of Parliament, as elected public representatives of the people of South Africa, to decide whether or not the covid-19 measures are proportional and in the public interest, instead of the Executive deciding that issue alone without Parliamentary oversight, or the Constitutional Court itself deciding the issue at this stage.
Direct Access to the Constitutional Court
Before we get to the DA’s argument in support of the relief it seeks, a brief word about going directly to the Constitutional Court without first approaching the High Court, then the Supreme Court of Appeal and only thereafter the Constitutional Court.
In the South African court system there are four layers in the hierarchy of higher courts outside of the specialist courts.
- the first layer comprises the high court presided over by one judge
- the second layer consists of the Full Bench of the high court comprising, ordinarily, a panel of 3 high court judges
- the third layer is the Supreme Court of Appeal comprising, ordinarily, a panel of 5 judges of appeal
- the fourth and final layer is the Constitutional Court which comprises 11 justices but 8 constitute a quorum.
It is only in exceptional circumstances that the Constitutional Court entertains an application directly to it. The factors – which do not constitute an exhaustive list – that the Constitutional Court has in numerous decisions considered in deciding whether or not to grant direct access include:
- prospects of success
- the nature of the constitutional issues raised
- the need for an urgent decision from the Constitutional Court
- whether the Constitutional Court requires the views of lower courts
- whether it is desirable for the Constitutional Court to sit as a court of first and final instance
- whether similar issues are pending before the Constitutional Court
- whether prejudice to the public good or good governance may occur
- whether the issue to be decided has a “grave bearing on the soundness of our constitutional democracy”
- the importance of the constitutional issue raised and the desirability of obtaining an urgent ruling of the Constitutional Court on it
- whether any dispute of fact may arise in the case
- the possibility of obtaining effective relief in another court
- the time and costs that may be saved by approaching the Constitutional Court directly
In order to meet that standard, the DA says:
- it has good prospects of success
- the application concerns the limits to Parliament’s powers to delegate legislative authority under the Constitution
- no disputes of fact are likely to arise
- there is a fine line between bold action being taken in order to deal with a crisis, on the one hand, and the unconstitutional concentration of power in the Executive on the other, and that the Constitutional Court, as the upper guardian of the Constitution, must intervene urgently to show where that line is
- South Africans are entitled to have a say in how they are governed in this crisis and that entitlement is now not months down the line
- Because the constitutional validity of a legislative provision is in question, the high court is not the final arbiter on such issues
- If the DA were to go to the high court first, an obviously urgent question of constitutional invalidity will be resolved months later
- the application does not involve the development of common law
Grounds for the Relief Sought (at a Glance)
The DA says s 27 of the DMA is unconstitutional because:
- The section confers broad powers on a Minister designated by the President not only to issue regulations but also to authorise other Ministers to issue directions, all virtually without procedural constraints or Parliamentary oversight.
- This absence of oversight manifests in, among other things, needlessly prescriptive directions, like what food and clothing items people may buy, what time they may exercise or walk their dogs, restrictions to e-commerce without any discernibly rational connection to the purpose of limiting covid-19 infections, all on pain of criminal prosecution and conviction.
- The absence of Parliamentary oversight also manifests in the severe incursions into the fundamental rights of South Africans that would otherwise have had to be explained to Parliament, ameliorated or possibly avoided altogether.
- The restrictions in s 27(3) are “not much of a restriction”. They are “broad and vague” and provide “no policy framework within which the Minister must operate”.
- The section authorises an impermissible delegation of legislative power by Parliament with Parliament playing a spectator role.
- The section creates a de facto state of emergency but without the safeguards, checks and oversight measures applicable in a state of emergency.
- The section creates a body of laws and legal paradigm that is parallel to South Africa’s law of general application.
- The section fails to enable Parliament to scrutinise and oversee executive action, as the Constitution requires in s 42(3) and s 55(2), and violates those 2 provisions of the Constitution. Section 42(3) of the Constitution says:
“The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.”
Section 55(2) says:
“The National Assembly must provide for mechanisms-
(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and
(b) to maintain oversight of-
(i) the exercise of national executive authority, including the implementation of legislation; and
(ii) any organ of state.”
Importantly, in paragraph 99 the DA stresses that it is not asking the Constitutional Court to determine “polycentric questions of policy”. This is because the Constitutional Court has in the past ruled that the separation of powers doctrine precludes the courts from determining questions of government policy that fall within the realm of the Executive.
The DA also stresses that it is not asking the Constitutional Court to make an order preventing the Executive (President and his cabinet) from acting quickly under the DMA. All it asks for, it says, is an order which provides it (and by extension Parliament) with an after-the-fact mechanism to influence delegated law-making under the DMA.