President Cyril Ramaphosa should have declared a state of emergency, the DA has argued in its court papers, adding that the regulations enforced under the Disaster Management Act (DMA) are unconstitutional.
In a 170-page affidavit filed on Thursday, Democratic Alliance MP Glynnis Breytenbach said the party opposed the “draconian” limitations on the rights of South Africans that come at great economic cost.
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The party is taking the government to court in two separate matters which challenge the validity of some aspects of the hard lockdown, including the military-enforced night curfew, the ban on e-commerce and the restriction on exercise hours.
“I am advised that this choice may be fundamentally unconstitutional. The regime under the Covid regulations resembles a state of emergency, but is not subject to the same safeguards,” Breytenbach said, adding that under DMA, Cooperative Governance Minister Nkosazana Dlamini-Zuma had broad and intrusive regulatory powers that were not subject to parliamentary oversight.
She argued that, had Ramaphosa declared a state of emergency, this would have only empowered him for 21 days, unless an extension was given by National Assembly approval through a 60% majority vote.
“Under a state of emergency, the president may promulgate emergency regulations as are necessary of expedient to restore peace and order, but must make adequate provisions for terminating the state of emergency. The Cogta minister is not required by the DMA to describe how we will return to something resembling normality and in the Covid regulations, she has not.”
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Breytenbach added that, under a state of emergency, Ramaphosa must table emergency regulations in Parliament, while the Disaster Management Act did not require any parliamentary oversight.
“In short, the regime under Level 4 Covid regulations resemble a state of emergency in material respects, but it’s not subject to the same safeguards. The Covid regulations, and all of the directions issues under them, may thus be unconstitutional in their entirety.”
She challenged the court to consider the consequences of Ramaphosa’s decision, arguing that under a state of emergency, Sections 37(4) of the Constitution permits legislation that derogates certain rights in the Bill of Rights. Lockdown regulations may not derogate any rights, she said.
Breytenbach said that, if the courts deemed these unlawful, irrational, unreasonable and disproportionate, “the court is required to declare them to be unlawful and set them aside, and is empowered by Section 172(1)(b) of the Constitution to make any other order that is just and equitable”.