Pretoria – The Helen Suzman Foundation is heading to court for an urgent order directing both Parliament and the national executive to prepare legislation that regulates the State’s response to the threat posed by Covid-19.
The foundation is objecting to the fact that “staggering powers” have been given to Co-operative Governance and Traditional Affairs Minister Dr Nkosazana Dlamini Zuma to make decisions of national importance.
It will argue that Parliament and Cabinet were “missing in action” and that they failed in their duty to prepare or initiate legislation to regulate the State’s response to the threat posed by Covid-19.
The foundation filed papers this week with the Gauteng High Court, Pretoria, in which it said the matter was very urgent.
The State has until the end of this week to note whether it will defend the application. If so, the government has until August 20 to file its opposing papers.
Francis Antonie, director of the foundation, said in court papers that under the Constitution, law-making and executive power ordinarily vested in Parliament and the executive.
The Disaster Management Act, on the other hand, vested extraordinarily wide-ranging legislative and executive powers in the minister to deal with issues arising out of disasters.
He said while centralising power in the minister may have been justified by the sudden threat presented by Covid-19, this basic departure from the Constitution’s separation of powers could only endure for a limited period.
It should be until Parliament and the executive could gather themselves and exercise their legislative and executive functions in relation to threats posed by the pandemic.
Antonie said Parliament had a duty to pass legislation that regulates concretely the state’s response to the threats posed and harm caused by Covid-19, while the executive had a duty to prepare and initiate this legislation, for consideration, debate and ultimate passage by Parliament.
The executive would then have a duty to implement that legislation.
Only by performing these duties will the current collapse in the separation of powers be remedied and South Africa’s democracy restored to constitutional normalcy.
In terms of the Constitution, both Parliament and the executive have central roles to play in the state’s response to Covid-19.
Antonie said this application was only about the narrow question of the structure of power under the Constitution. He said it was now critical that power be restored and vested in Parliament and the executive, where it belonged under the Constitution.
He said in the aftermath of the declaration of the state of disaster, Parliament and the executive ought actively to have taken steps to reclaim their constitutionally-assigned roles.
According to the foundation, they failed to do so.
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