The HSF's Covid-19 litigation is critical - FW de Klerk Foundation

Foundation has asked court to direct govt to prepare proper legislation to govern response to epidemic

Litigation by the Helen Suzman Foundation regarding responsibility for the management of the Covid-19 crisis

22 May 2020

The FW de Klerk foundation welcomes the Helen Suzman Foundation’s (HSF) application, direct to the Constitutional Court, to declare that Parliament, the President and the Cabinet have failed to fulfill their obligations under the Constitution to prepare and adopt legislation to regulate the state’s response to the threat posed by COVID19.

The HSF has asked the Court to direct the Cabinet and Parliament to prepare and adopt such legislation – and to declare that the powers that the Minister of Cooperative Governance has assumed under the Disaster Management Act to manage the crisis will be terminated as soon as the requested legislation has been adopted.

The HSF has made it clear that it is not questioning the merits or otherwise of the regulations that have been promulgated to deal with the very difficult and complex threat posed by COVID19 – but rather the manner in which the state –“or parts of the state” have failed to respond to the crisis. Instead, the HSF believes that “it is now critical that the proper location of that power (to deal with COVID19) be restored, not only in the present crisis… but for the long-term importance of our constitutional project.”

The HSF believes that the Disaster Management Act was not the correct instrument for the management of the COVID19 crisis. Instead, the President, the Cabinet and Parliament should have adopted legislation specifically designed to deal with the pandemic.

The National Executive has failed to use its authority to prepare legislation specifically tailored to deal with COVID19 and has instead permitted the Minister of Cooperative Governance to “exercise sweeping powers under the Disaster Management Act to limit and direct how persons, both natural and juristic, live and act, in almost every aspect of their daily existence.”

The HSF believes that the Disaster Management Act can operate only for a very short period until Parliament and Cabinet can “reclaim their constitutionally mandated legislative and executive roles”. Instead, Parliament and the executive seem to think that the Minister can exercise her power as long as COVID19 remains a threat - which could be “for months or even years”. This means that the management of the crisis would remain solely within the purview of the executive. The seriousness of the situation cannot be overstated because the Minster’s powers under the Act give her the ability to limit many of the core rights in the Bill of Rights.

By abrogating its responsibility to adopt appropriate COVID19 legislation, Parliament has failed to carry out its constitutional function to “represent the people”; “ensure government by the people under the constitution”; and to “provide a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.”

This issue is of critical importance for South Africa’s constitutional democracy. The HSF quotes the Constitutional Court’s judgement in Oriani-Ambrosini on the imperative of participatory democracy in which the Court stated that

“the Constitution… contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered…

“The open and deliberative nature of the process goes further than providing a dignified and meaningful role for all participants. It is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them in unilateral decision-making. It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on the minority groups as well. In the end, the endeavours of both majority and minority parties should be directed not toward exercising (or blocking the exercise) of power for its own sake, but at achieving a just society, where, in the words of the Preamble, ‘South Africa belongs to all who live in it…”

The outcome of the HSF litigation could play an important role in ensuring the continuation of the kind of society envisaged in our Constitution.

By Dave Steward, Chairman of the FW de Klerk Foundation, 22 May 2020