The Helen Suzman Foundation (HSF) has launched a constitutional challenge in a bid to force Parliament to reclaim its constitutionally assigned role to pass legislation which regulates the state's response to Covid-19, following President Cyril Ramaphosa's declaration of the state of disaster.
In court papers, filed with the Constitutional Court on Wednesday, HSF director Francis Antonie argued that Parliament has actively failed to reclaim its duties as a legislative authority in South Africa and has instead allowed the executive branch to legislate the state's response to the pandemic.
According to the HSF, Parliament has failed in its duties as mandated by the Constitution, which is to consider issues and initiate, prepare and pass legislation relating to the threat and harm caused by the virus.
Equally, Ramaphosa, as the head of the executive, together with the Cabinet, have failed to fulfil their constitutional duties to prepare and implement legislation relating to Covid-19.
Antonie contended that the HSF case is uncomplicated in a matter of law.
"The Disaster Act, which redirects in a wholesale way legislative and executive power to the minister (Minister of Cooperative Governance and Traditional Affairs (Cogta) Nkosazana Dlamini-Zuma) can only operate for a very short period, namely, until Parliament and Cabinet are positioned to reclaim their primary, constitutionally-mandated legislative and executive roles," Antonie said.
"This requires both bodies actively to take steps to reach this state.
"What HSF fears is a misunderstanding of the Disaster Act, as against the requirements of the Constitution. It is evident that Parliament and the national executive believe that the minister can exercise her power for as long as Covid-19 presents a threat."
The HSF further said that Covid-19 could remain a threat for months or even years, meaning that the state's response will remain exclusively within the subjective purview of the executive branch of government.
In the court papers, the HSF explains that the application is not about the merits of any of the regulations, directions or other substantive exercise of power by the Cogta minister, the president or the Cabinet relating to Covid-19.
"The Covid-19 crisis has required difficult decisions and urgent responses about which reasonable people might disagree. The HSF respects the enormous burden that has fallen on the shoulders of the president and his government at this time.
"This application is entirely and only about a narrow, but fundamental question to do with the structure and location of power under the Constitution."
HSF argued that Parliament has abandoned the power vested in it by the Constitution to Dlamini-Zuma and Ramaphosa, who, for more than two months now, continue to act unilaterally using the Disaster Management Act to legislate every material aspect of everyone's social, political and economic life in South Africa.
Antonie said this has not only impacted the rights of the entire populace, but has also been to the detriment of fundamental constitutional principles held to be sacrosanct by the Constitutional Court.
The HSF is not looking to challenge the validity of any positive law made or conduct taken by the executive to date, but rather wants an order declaring that Parliament failed in its constitutional duties during the Covid-19 crisis and that the president and the Cabinet failed to fulfil their obligations to prepare and initiate the legislation.
The application also seeks to have the court direct that Parliament must, without delay, exercise its power for the sake of passing legislation in terms of the regulations, and that the Cabinet must exercise its power to implement the legislation that has been passed.
The HSF also wants the Constitutional Court to order that the Cogta minister's powers in terms of the Disaster Management Act are terminated, as Parliament takes over the role of regulating the legislation.