Press release: HSF Approaches The High Court In Relation To Covid-19

The Helen Suzman Foundation (HSF) has filed papers in the High Court, asking for an order directing both Parliament and the Executive to take immediate steps to ensure that they reclaim and restore the respective powers of Parliament and the Executive as envisaged in the doctrine of the separation of powers as embodied in the Constitution.

Under the Constitution, law-making and executive power ordinarily vests in Parliament and the Executive. The Disaster Management Act, on the other hand, vests extraordinarily wide-ranging legislative and executive powers in the Minister of Cooperative Governance and Traditional Affairs, to deal with issues arising out of disasters. 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 a limited period, namely, until Parliament and the Executive can gather themselves and exercise their legislative and executive functions in relation to threats posed by COVID-19.

Parliament has 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 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 terms of the Constitution, both Parliament and the Executive have central roles to play in the state's response to COVID-19.

In the aftermath of the declaration of the state of disaster, the 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 four 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.

On 21 May 2020 the HSF approached the Constitutional Court to obtain relief that would see the restoration of power to Parliament and the Executive. This restoration would enable the legislative and executive bodies to respond to the COVID-19 pandemic in a manner that reflects their constitutional obligations. (Read more)

On 03 July 2020 the Constitutional Court ruled on a technicality that the HSF’s application did not engage the Court’s exclusive jurisdiction.

The HSF, after having considered the order, as well as current legal trends, proceeded to lodge an application in the High Court on 24 July 2020.

The HSF desires a restoration of power to Parliament and the Executive, functioning as each is required by the Constitution.  No explicit 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 seeks to restore the primacy of our Constitutional dispensation.

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

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