Dlamini-Zuma calls DA's arguments 'absurd' in High Court affidavit

Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma.
Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma.
  • Cogta Minister Nkosazana Dlamini-Zuma has hit back at the DA's court challenge to declare the Disaster Management Act unconstitutional. 
  • Dlamini-Zuma has submitted an affidavit responding to the DA's court challenge. 
  • This is the second attempt by the DA to challenge the constitutionality of the Disaster Management Act. 

Cogta Minister Nkosazana Dlamini-Zuma has argued it is "absurd" for the DA to want to dictate to the National Assembly on how to conduct oversight on the executive during the lockdown.

In a 100-page court document, she said the National Assembly's oversight duties did not entitle it to overturn any decisions taken by the executive in the lawful exercise of its powers. 

This after the DA turned to the courts to challenge the powers of the executive during the national state of disaster - invoked amid the Covid-19 pandemic - asking them to declare Section 27 of the Constitution unconstitutional. 

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The party first approached the Constitutional Court, however, the courts refused it direct access. 

The move by the DA has also been explored by the FF Plus who turned to the High Court to challenge powers afforded to Dlamini-Zuma through the act but that challenge was again dismissed. 

In her affidavit, she cited the Constitutional Court's Nkandla judgment which ruled against the National Assembly after Parliament overturned Public Protector Thuli Madonsela's report.

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Dlamini-Zuma argued the Constitutional Court had found the resolution by the National Assembly to overturn the Public Protector's report as an attempt to take the law into its own hands, resort to self-help and flout its obligations. 

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"It fails to recognise that the Constitution leaves it to the National Assembly to determine its own mechanisms of oversight and that the National Assembly has indeed exercised that discretion and established elaborate mechanisms." 

She conceded sections 42(3) and 55(1) of the Constitution rendered a range of people and institutions accountable to the National Assembly, including the Cabinet, Chapter 9 institutions and the public service commissions, adding the provisions did not impose duties on Parliament as a whole to build mechanisms of accountability into every piece of legislation. 

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 "It is accordingly absurd to suggest when Parliament enacts legislation of this kind, the Constitution obliges it to give effect to the National Assembly's discreet oversight function.

"I accordingly submit that the DA is mistaken when it contains that Parliament was obliged to provide in Section 27 of the Disaster Management Act for the National Assembly to have the power to second guess and veto the minister's disaster regulations."   

In the Constitutional Court, the DA had argued its application raised "fundamental questions" about the separation of powers between Parliament and the executive. 

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"The nation is living through extraordinary times, and the executive's response to the pandemic, making use of section 27 of the act, raises urgent issues of profound constitutional importance about whether that section is constitutionally compliant," it said.DA interim leader John Steenhuisen argued the act gave Dlamini-Zuma wide powers.

He said it allowed for the unconstitutional delegation of Parliament's powers to the executive, and gave her "exceedingly broad powers".

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Dlamini-Zuma added the remedy sought by the DA was inappropriate and unconstitutional, saying since 2002, the DA had never raised a complaint about any deficiency in Section 27 of the Disaster Management Act. 

"If it had any such complaint, it had both legislative and judicial remedies available to it to address the complaint. The disaster was proclaimed on 15 March, more than four months ago. The DA does not explain why it failed to take any action since then before launching this application more than two months later." 

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