The DA argued that section 27 of the Disaster Management Act (DMA) gave the minister excessive power and effectively weakened Parliament’s oversight during the lockdown period. The Constitutional Court heard the matter on February 6 and delivered judgment on Friday.
The court produced two judgments with different reasoning. Justice Zukisa Tshiqi found section 27 unconstitutional, saying the DMA does not give the National Assembly a clear way to disapprove disaster regulations that can significantly affect rights.
But Justice Leona Theron’s second judgment overruled that view and dismissed the appeal, stressing that a state of disaster is fundamentally different from a state of emergency. “Under a national state of disaster, the state will still be required to justify each and every limitation of a constitutional right in section 36(1),” the judgment said.
“A declaration of a national state of disaster neither suspends the constitutional order nor dilutes it. A state of emergency allows the executive to cut across all laws and the Bill of Rights,” the court explained.
Theron’s judgment also said there is no constitutional requirement for the DMA to spell out special oversight mechanisms because parliamentary oversight is an “obligatory component” of the Constitution.
