In May 2020, the Democratic Alliance (“DA”) launched an application in the Constitutional Court against the Minister of Co-operative Governance and Traditional Affairs (the “COGTA Minister”), the Speaker of the National Assembly, the Chairperson of the National Council of Provinces and the South African President. In this application, the DA seeks leave from the Constitutional Court for direct access in terms of section 167(6)(a) of the Constitution read together with Rule 18 of the Constitutional Court Rules.

The DA contends that section 27 of the Act is unconstitutional and invalid and in order to remedy the unconstitutionality, the DA requests the Constitutional Court to pronounce that any declaration of a national state of disaster and any regulation or direction made or issued under section 27(2) should be laid before parliament by the COGTA Minister.

In relation to this application, the Chief Justice has directed the parties to file written submissions on whether direct access should be granted.

The DA’s written submissions were filed on 5 June 2020. The the DA made it clear that the Constitutional Court application is not about the merits or demerits of the Regulations or the various directions made under the Act. The DA has indicated that even though the COGTA Minister has invoked far-reaching powers under section 27 of the Act, there are parts of the Regulations that are sensible and an appropriate response to the threats posed by the Coronavirus (COVID-19). They, however, contend that there are parts of the Regulations that do little to prevent the spread of the virus and they come at an extraordinary cost to the economy and the rights of ordinary South Africans.

The DA’s main challenge is that the concentration of power that section 27 of the Act places in the hands of the COGTA Minister is unconstitutional.

Even though the Constitutional Court usually only grants direct access in exceptional circumstances, the DA contends that because of the pandemic that we are currently experiencing, we are living in extraordinary times and therefore, it should be granted direct access. It adds that the application raises urgent issues of constitutional importance and argues further that the Constitutional Court, as the upper guardian of our constitutional democracy, should finally resolve the question as to whether section 27 of the Act is unconstitutional.

The DA complains that the COGTA Minister is given the power to legislate on almost every aspect of the lives of citizens and she has used the powers to close the country’s borders, mothball various industries and tie down many citizens to their homes. The DA expresses concern that the COGTA Minister does this without oversight. It also contends that the country is effectively being placed under a simulated state of emergency, without the safeguards as provided for in section 37 of the Constitution and the State of Emergency Act, 1997.

The DA has also expressed concern that the National State of Disaster could exist indefinitely, because while it was first declared on 15 March 2020, it was on 5 June 2020, extended to 15 July 2020. The DA also alleges that parliament’s approval was not sought or obtained for the extension and it suggests that the COGTA Minister could repeatedly extend the state of disaster in the future, without input from parliament.

The DA has, however, recognised that the extension without input from parliament is not a criticism of the COGTA Minister, as she is making use of the powers thatsSection 27 of the Act conferred on her.

Therefore, the DA is not directly complaining about the minister’s conduct, but rather is challenging section 27 of the Act.

The DA contends that some of the debates presently occurring in the courts in regard to the constitutionality of various aspects of the Regulations ought to have properly taken place in parliament, because parliament, as the elected representatives of the public, ought to have a say on issues that affect citizens’ daily lives.

There is no guarantee that the DA’s application will succeed by virtue of, amongst others, the following:

  1. When the Act was enacted, the DA had supported its enactment;
  2. The DA took approximately two months after the declaration of the state of disaster, to launch its application and the respondents contend that for this reason too, the application should not succeed; and
  3. The respondents claim that the lock-down regulations have, in any event, been subject to intense scrutiny by parliament.

It is still not clear whether this application will be decided on the basis of the papers filed or whether the Constitutional Court will hear oral argument in regard to the application and if so, when.

Even if the DA is granted direct access and it convinces the Constitutional Court to declare section 27 of the Act unconstitutional, it may not automatically follow that all of the declarations, regulations and directions made in terms of section 27 of the Act, prior to such a determination by the Constitutional Court, are invalidated. This judgment may only end up having prospective effect.