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 papers, filed with the Constitutional Court this week, HSF director Francis Antonie argued that Parliament has actively failed to reclaim its duties as a legislative authority and has instead allowed the executive branch to legislate the state's response to the pandemic, reports News24.

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 (of Co-operative Governance & Traditional Affairs 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 pointed out 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, notes News24, 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.’

Effectively, HSF argues 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 SA.

Full News24 report

Notice of motion and founding affidavit