HSF approaches the Constitutional Court, seeking restoration of Parliament and the Executive's roles in relation to COVID-19

Today, the Helen Suzman Foundation (HSF) filed papers in the Constitutional Court, seeking urgent relief. It asks for an order directing Parliament and the Executive to take immediate steps to initiate, prepare, consider and pass legislation relating to COVID-19.

The Disaster Management Act vests extraordinarily wide-ranging legislative and executive powers in the Minister of Cooperative Governance and Traditional Affairs, to deal with issues arising out of occurrences like COVID-19.  Under the Constitution, however, this law-making and executive power vests in Parliament and the Executive.  Whilst 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 can only endure for as short a period as possible, namely, until Parliament and the Executive can gather themselves and exercise their legislative and executive functions in relation to COVID-19.

Parliament has a duty to pass legislation that regulates concretely the state's response to the threat posed and harm caused by COVID-19, whilst the Executive has 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 this way, in terms of the Constitution, both Parliament and the Executive have a central role to play in the state's response to COVID-19.

As recognised by the Constitutional Court, the parliamentary process is one which embraces openness, encourages critical debate and allows for greater input into law-making, resulting in a richer, more nuanced outcome (which may guard against any unintended consequences where such plurality of views is lacking).

In the aftermath of the declaration of the state of disaster, HSF submits, Parliament and the Executive ought actively to have taken steps to reclaim their constitutionally-assigned roles.  They have failed to do so.  Instead, for two months, they permitted the Minister, alone or with the National Coronavirus Command Council, to legislate the state's response to COVID-19.  They appear content to allow their ultimate authority to be exercised by others, seemingly for as long as COVID-19 poses a threat.

Having failed to reclaim their constitutional powers, the HSF has been forced to approach the Constitutional Court, seeking an order compelling them to do so.

The HSF desires a restoration of power to Parliament and the Executive, functioning as each is required by the Constitution.  No attack is made on the policy choices or value judgments embodied in existing regulations, nor will the regulations fall away before Parliament passes the required laws.  The application is pro-government and pro-law.  Under our Constitution, though, government has three parts—executive, judicial and parliamentary—and it is the last of these that makes law.  The HSF's application seeks to get the whole structure of our government working again, Parliament included.

This is fundamental.  Parliament, the Constitutional Court recently said, "is the embodiment of the centuries-old dreams and legitimate aspirations of all our people.  It is the voice of all South Africans, especially the poor, the voiceless and the least˗remembered . . . Parliament is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people.  No doubt, it is an irreplaceable feature of good governance in South Africa."

For two months now, in the midst of national and global crisis, this irreplaceable voice of the people has fallen silent.  The time has come for it to speak again.

For a copy of the Notice of Motion and Founding Affidavit, click here.

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