Parliament and Cabinet dragged to court for not enacting Covid-19 law

Cape Town – The Gauteng High Court, Pretoria, will hear an urgent application on Thursday by the Helen Suzman Foundation (HSF) which wants Parliament and the Cabinet ordered to pass Covid-19 legislation.

National Assembly Speaker Thandi Modise, President Cyril Ramaphosa, the Cabinet, Cogta Minister Nkosazana Dlamini Zuma, and National Council of Provinces chairperson Amos Masondo are cited as respondents in their official capacity.

Modise is opposing the application.

It could not be immediately established if Ramaphosa and others were opposing the application.

The application follows a failed bid by the foundation when it filed papers in the Constitutional Court on May 21 seeking direct access. The court ruled on July 3 that it did not fall within its jurisdiction.

The foundation subsequently lodged a new application in the high court on August 25 seeking the same relief.

In his founding affidavit, the foundation’s director, Francis Antonie, said the foundation had lodged the application because Parliament and the Cabinet had failed to pass the law on Covid-19.

Antonie said they had also failed to fulfill their constitutional responsibilities to respect and promote the rights in the Bill of Rights.

“This application is not about the merits or otherwise of any regulations, directions, or other substantive exercises of power by the minister of Cogta, the president or Cabinet relating to Covid-19.

“The Covid-19 crisis has required difficult decisions and urgent responses about which reasonable people might disagree,” he said, acknowledging the enormous burden that has fallen on the shoulders of Ramaphosa and the government.

Antonie also said the application was solely concerned with a narrow question to do with the structure and location of power under the Constitution.

“It is now critical that the proper location of that power be restored, not only in the present crisis but for the long-term importance of our constitutional object.”

Antonie maintained that the Cabinet and Parliament had failed in their constitutional duties to exercise the legislative and executive authority to deal with Covid-19.

He said both had failed to introduce and pass legislation on Covid-19, and that the Cogta minister was permitted, alone or with others, to exercise sweeping powers under the Disaster Management Act (DMA) to limit and direct how persons, both natural and juristic, live or act, in almost every aspect of their daily existence.

Antonie charged that the DMA could operate for a very short time until Parliament and the Cabinet reclaimed their legislative and executive roles.

“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. This could be for months or even years, meaning that the state’s response to Covid-19 will remain exclusively within the subjective purview of the executive branch of government.”

Antonie also said the court should declare the failures of the Cabinet and Parliament unconstitutional, and order them to exercise their duties to deal adequately with the threat of Covid-19.

The Cabinet and Parliament should be directed to enact legislation on Covid-19 without delay, he added.

Modise, in her answering affidavit, said the relief sought was mistaken as a matter of fact and law.

She said the Disaster Management Act was promulgated by Parliament to provide for the government’s response to a national disaster, and Covid-19 was one.

Modise also said there was no mandatory obligation on Parliament to pass the legislation as sought by the foundation.

“The applicant has failed to point out any specific provision of the Constitution which requires the respondents to initiate and pass such legislation.”

She also maintained that the order, if granted, would be ineffective.

“Even if the court found that Parliament has failed to act in accordance with its constitutional obligation, the order the applicant seeks is impermissible because it is unenforceable,” Modise said.

The National Assembly Speaker said Parliament had exercised oversight over the Cabinet and Cogta’s responses to Covid-19.

Modise also said the Helen Suzman Foundation had not provided credible evidence to suggest the oversight was constitutionally insufficient.

She asked the court to dismiss the “ill-founded” application with costs.

“The judicial intervention the application prays for is inappropriate and unwarranted in the circumstances,” Modise said.

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