Democratic Alliance v Minister of Co-operative Governance and Traditional Affairs and Others (22311/2020) [2021] ZAGPPHC 168 (24 March 2021)

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[2021] ZAGPPHC 168
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Democratic Alliance v Minister of Co-operative Governance and Traditional Affairs and Others (22311/2020) [2021] ZAGPPHC 168 (24 March 2021)

IN
THE HIGH COURT OF SOUTH AFRICA,
(GAUTENG
DIVISION, PRETORIA)
Case
No.: 22311/2020
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between: -
THE
DEMOCRATIC
ALLIANCE
Applicant
and
THE
MINISTER OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
1
st
Respondent
THE
SPEAKER OF THE NATIONAL ASSEMBLY
2
nd
Respondent
THE
CHAIRPERSON OF THE NATIONAL
COUNCIL
OF
PROVINCES
3
rd
Respondent
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
4
th
Respondent
Coram:
MUSI, JP
et
MATOJANE
et
WINDELL JJ
Heard:
08 February 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by e-mail.  It has been
released to SAFLII.  The date and time for hand-down is deemed
to be 24 March 2021, 10h00.
Summary:
Constitutional law –
Section 27
of the
Disaster Management Act
57 of 2002
– Consistent with the Constitution and thus valid.
JUDGMENT
MUSI
JP (WINDELL J concurring)
[1]
This case concerns two interrelated constitutional issues. First, the
constitutionality
of section 27 of the Disaster Management Act
[1]
(Act). Second, the sufficiency of Parliament’s oversight over
the Executive in instances where the former has delegated broad

legislative powers to the latter.
[2]
The Severe Acute Respiratory Syndrome Coronavirus 2 is a strain of
the coronavirus
that causes coronavirus disease 2019 (COVID-19). This
virus and its variants are responsible for the untold devastation of
lives
and livelihoods. It spread like a wildfire affecting almost
every country in the world. Governments were forced to take immediate

measures to curb its rapid spread. This country also had to gird its
loins by utilising legislative and other means in an endeavour
to
limit its spread and destruction.
[3]
An outbreak of COVID-19 was first identified in Wuhan, in the Hubei
Province in China,
during December 2019. The World Health
Organization declared the outbreak a public health emergency of
international concern on
30 January 2020, and declared it a pandemic
on 11 March 2020.
[4]
On 5 March 2020, the first COVID-19 case was confirmed in South
Africa. Ten days later,
on 15 March 2020, the Minister of Cooperative
Governance and Traditional Affairs (COGTA) (First Respondent or
Minister) declared
a national state of disaster due to the COVID-19
outbreak in South Africa. This was done because the magnitude and
severity of
the outbreak created extraordinary, exceptional and
urgent circumstances that required a wide-ranging swift and effective
response.
[5]
On 23 March 2020, the Fourth Respondent (President) announced a
national lockdown
in South Africa, commencing on 26 March 2020. By
then, there were 402 confirmed cases of COVID-19 infections in South
Africa.
[6]
On 25 March 2020, the Minister published lockdown regulations that
were amended a
day later. The lockdown regulations were extensive,
and in some respects, they placed unprecedented restrictions on many
constitutionally
guaranteed fundamental rights and freedoms. On 29
April 2020, the Minister published the disaster management
regulations. These
regulations were subsequently amended in order to
ease the lockdown restrictions in line with the alert levels in the
risk-adjusted
strategy. The Minister thereafter promulgated
regulations as and when the need arose in accordance with the alert
levels or the
easing of restrictions.
[7]
The Democratic Alliance (Applicant) was of the view that section 27
of the Act is
unconstitutional. On 18 May 2020 it approached this
Court, on an urgent basis, essentially seeking an order that section
27 be
declared unconstitutional and invalid. It sought the following
relief:
‘
1.
Condonation is granted for the applicant’s non-compliance with
the prescribed
forms, time periods and service requirements and leave
is granted for this application to be heard as one of urgency in
terms of
Uniform Rule 6(12).
2.
Section 27 of the Disaster Management Act 57 of 2002 (‘
the
Act
’) is declared to be
unconstitutional and invalid.
3.
In order to remedy this unconstitutionality, and with effect from the
date of
the order, section 27 of the Act is ordered to be read as if
a new section 27(4A) has been added immediately after section 27(4),

reading as follows:
“
(a)
A copy of any declaration of a national
state of disaster and any regulation or direction made or issued

under section 27(2) shall be laid upon the Table in Parliament by the
Minister as soon as possible after the publication thereof.
(b)
The National Assembly may at any time –
(i)
by resolution disapprove of any such declaration, regulation or
direction; or
(ii)
by resolution make any
recommendation to the Minister in connection with such declaration,

regulation or direction.
(c)
Any such declaration, regulation or
direction shall cease to be of force and effect as from the
date on
which the National Assembly resolves under subsection (b)(i) to
disapprove of such declaration, regulation or direction,
to the
extent to which it is so disapproved.
(d)
The provisions of subsection (c) shall
not derogate from the validity of anything done in terms
of any such
declaration, regulation or direction up to the date upon which it so
ceased to be of force and effect, or from any
right, privilege,
obligation or liability acquired, accrued or incurred, as at the said
date, under and by virtue of any such declaration,
regulation or
direction.
(e)
The provisions of subsections (a) to (d) apply equally to an
extension of a national state
of disaster in terms of section
27(5)(c).”
4.
The first respondent is directed to table before the National
Assembly within
three days of this order:
4.1
the declaration of the national state of disaster in GN 313
GG
43096 of 15 March 2020;
4.2
the regulations issued in terms of section 27(2) of the Act published
in GNR 480
GG
43258 of 29 April 2020 (‘
the COVID
regulations’
); and
4.3
all directions and regulations issued under the COVID regulations
(including all directions
and regulations that remain valid under
regulation 2(3) of the COVID regulations).
5.
It is declared that none of the declarations, regulations and
directions made
in terms of section 27 of the Act prior to the date
of this order are invalidated only by virtue of the orders in
paragraphs 2
to 4 (inclusive) above.
6.
Paragraphs 2 to 5 of this order are referred to the Constitutional
Court for
confirmation.
7.
Those respondents opposing any part of the relief sought are directed
to pay
the applicant’s costs, jointly and severally, one paying
the other to be absolved, including the costs of two counsel.’
[8]
On 15 May 2020, the applicant also approached the Constitutional
Court seeking direct
access to that Court. That application was
dismissed.
[9]
I propose to deal with the issue of urgency before considering the
other issues raised.
[10]
The applicant contended that this application is self-evidently
urgent. It stated that this matter
needs to be determined with great
expedition and cannot be effectively determined in the ordinary
course. It contended that the
Minister’s regulations constitute
an unprecedented limitation of fundamental rights and have cost South
Africa millions of
jobs and billions of rands. These vagaries
continue as long as the regulations are valid.
[11]
The first and fourth respondents dispute the urgency of the matter.
They pointed out that the
applicant brought this application, two
months after the state of disaster declaration, and it did not
provide any reasons why
it did so after such a long time. They stated
that the applicant had not raised any of its complaints or more
pertinently the complaint
about the constitutionality of section 27,
since the Act was promulgated in 2002. They further pointed out that
the applicant was
consulted by the President during numerous meetings
held with political parties represented in parliament. The meetings
commenced
on 18 March 2020 and continued on 9 April 2020, 23 April
2020 and 20 May 2020.
[12]
The first and fourth respondents filed their answering affidavits on
27 July 2020 while the Speaker
of the National Assembly (Speaker or
second respondent) and the Chairperson of the National Council of
Provinces (third respondent)
filed theirs on 31 July 2020. The
respondents do not allege that they were prejudiced in the
preparation of their case.
[13]
In
Freedom
Front Plus
[2]
it was said that:
[3]
‘
In
these proceedings it cannot follow that even if the applicant
consented to the enactment of the DMA, and subsequently supported
the
declaration of disaster by the second respondent on 15 March 2020 and
the subsequent lockdown regulations, it could be said
that it waived
its right to subsequently challenge the constitutionality of the DMA
or the declaration of a disaster.  Its
prior conduct could not
be dispositive of its ongoing right to launch a constitutional
challenge of the kind that this application
does.’
[14]
In
The
Helen Suzman Foundation,
[4]
the following was said about the urgency of COVID-19 cases:
‘
In
considering the submissions of both parties regarding urgency, we
could not lose sight of the background to this application
which
finds its genesis from a declaration of a disaster which is defined
in the DMA as “a progressive or sudden, widespread
or
localised, natural or human caused occurrence” which causes or
threatens to cause death, injury or disease. The stark
reality of the
consequences of Covid-19 needs no emphasis. Equally, in our view,
that reality does not suggest a situation where
relevant issues can
be dealt with in the ordinary course. This would mean
,
unless proved otherwise, an intrinsic sense of urgency in dealing
with Covid-19 matters.’
[5]
[15]
I agree with the sentiments expressed in
Freedom
Front Plus
and
The
Helen Suzman Foundation
.
[16]
The first and fourth respondents did not allege that this application
constitutes an abuse of
court processes. This matter should be dealt
with on an urgent basis.  Having dispensed with the issue of
urgency, the remaining
issue to consider is the constitutionality of
section 27 of the Act.
[17]
The constitutionality of section 27 was challenged on the following
bases:
17.1
firstly, it is an unconstitutional delegation of Parliament’s
legislative powers to the Executive.
It gives the Minister
exceedingly broad powers to legislate over almost every aspect of the
lives and businesses of South Africans;
17.2
secondly, it permits the creation of something like a state of
emergency, but without the oversight role
that section 37 of the
Constitution requires for Parliament in an actual state of emergency.
17.3
thirdly, it does not enable the national assembly to scrutinize and
oversee executive action as is required
by sections 42(3) and 55(2)
of the Constitution.
[18]
The second and third bases were not stridently argued, nor were they
abandoned by the applicant.
The applicant, however, accepted that
these bases were definitively decided in
Freedom
Front Plus
.
[19]
With regard to the first and second bases of the challenge in this
matter,
Freedom Front Plus
held the following:
‘
The
applicant made much of the fact that s37 provides for parliamentary
oversight where a state of emergency is declared.
On the other
hand, it says, the DMA places power in the hands of the executive
and, in particular, the second respondent. According
to the
applicant, in this respect, the DMA ignores the fundamental
constitutional prescript that the will of the people should
be
respected.  The applicant points out that the current state of
national disaster has been extended more than once without
any
parliamentary debate.
Once
the fundamental distinction between a state of emergency and a state
of disaster is understood, this complaint loses its force.
It
is because of the constitutional deviations that are permitted under
a state of emergency that parliamentary oversight is expressly

included in s37.  Where no such deviation is permitted, it is
not necessary to make special provision for parliamentary oversight.

That oversight is a normal component of our constitutional framework:
68.1.
Section 42(3) of the Constitution stipulates that one of the roles of
the National Assembly is to scrutinise and
oversee executive action.
68.2.
Section 55(2)(b)(i) tasks the National Assembly with providing
mechanisms to maintain oversight of, among others, national
executive
authority.
68.3.
Section 92(2) provides that members of the executive are responsible
individually and collectively to Parliament.
The
national state of disaster does not render these provisions
inoperable.  The explanatory affidavit filed by the third and

fourth respondents’ records that during the current state of
national disaster, Parliamentary oversight has been exercised
through
the various portfolio committees of the National Assembly, as well as
through the various select committees of the National
Council of
Provinces.  The affidavit sets out details of the engagements
that have taken place between these legislative bodies
and members of
the executive.  If the applicant is of the view that either
Parliament or the executive is not complying with
its constitutional
obligations in this regard, it may review that conduct.  But
that is a separate challenge.  It does
not make the DMA
unconstitutional.’
[6]
[20]
A Full Court of this division decided
Freedom
Front Plus
. In terms of the doctrine of
precedent we are bound by
Freedom Front
Plus
. We are also sitting as a Full
Court and therefore have the authority to overrule
Freedom
Front Plus
because we are a Court of
equal status. However, we may only do so when we are convinced that
the
Freedom Front Plus
decision was clearly wrong.
[21]
In
Turnbull-Jackson
[7]
Madlanga J said the following about the test for departing from a
precedent of a court of equal status:
‘
Whether
the reasoning of a court was wrong is not a matter of personal
preference, mere disagreement, misgivings, doubt, let alone
whim.
A court with authority to depart from precedent may only do so if it
is convinced that the previous decision was clearly
wrong. The test
is a stringent one.  And “mere lip service to the doctrine
of precedent is not enough; . . . deviation
from previous decisions
should not be undertaken lightly.”’
[8]
[22]
The applicant correctly conceded that it could not argue that
Freedom
Front Plus
was clearly wrong. It,
however, informed us that it reserves the right to argue those bases
in a higher court, if needs be.
[23]
After careful consideration of the holdings in
Freedom
Front Plus
, it cannot be said that
Freedom Front Plus
was wrong in its holdings with regard to the bases under
consideration.
[24]
Before considering the first basis of the attack on the
constitutionality of section 27, I propose
to first set out the
legislative roadmap of the Act.
[25]
The first respondent has been designated by the President to
administer the Act.
[9]
[26]
The Act defines ‘disaster’ and ‘disaster
management’ as follows:
‘
'disaster'
means a progressive or sudden,
widespread or localised, natural or human­caused occurrence which
(a)
causes or threatens to cause
(i)
death, injury or disease;
(ii)
damage to property, infrastructure or the
environment; or
(iii)
significant disruption of the life of a
community; and
(b)
is of a magnitude that exceeds the ability
of those affected by the disaster to cope with its effects using only
their own resources;
'disaster
management'
means a continuous and
integrated multi­sectoral, multi­disciplinary process of
planning and implementation of measures
aimed at
(a)
preventing or reducing the risk of disasters;
(b)
mitigating the severity or consequences of disasters;
(c)
emergency preparedness;
(d)
a rapid and effective response to disasters; and
(e)
post­disaster recovery and rehabilitation;’
[10]
[27]
The Act establishes a National Disaster Management Centre (National
Centre).
[11]
In terms of
section 9 of the Act “the objective of the National Centre is
to promote an integrated and coordinated system
of disaster
management, with special emphasis on prevention and mitigation, by
national, provincial and municipal organs of state,
statutory
functionaries, other role-players involved in disaster management and
communities”.
[28]
The powers and duties of the National Centre include making
recommendations to any relevant organ
of state or statutory
functionary:
‘
(i)
on draft legislation affecting this Act, national disaster management
framework or
any other disaster management issue;
(ii)
on the alignment of national, provincial or municipal legislation
with this act and the
national disaster management framework; or
(iii)
in the event of a national disaster,
on whether a national state of disaster should be declared
in terms
of section 27;…’
[12]
[29]
Section 23 of the Act gives the National Centre the power to classify
a disaster after assessing
it. The section reads:
’
(1)
When a disastrous event occurs or threatens to occur, the National
Centre must, for the purpose
of the proper application of this Act,
determine whether the event should be regarded as a disaster in terms
of this Act, and if
so, the National Centre must immediately
(a)
assess the magnitude and severity or
potential magnitude and severity of the disaster;
(b)
classify the disaster as a local,
provincial or national disaster in accordance with subsections (4),
(5) and (6);
(bA)
inform the relevant provincial disaster management centre of the
decision on the classification of
the disaster made in terms of
paragraph (b);  and
(c)
record the prescribed particulars concerning the disaster in the
prescribed register.’
[30]
After the classification of a national disaster, the coordination and
management thereof become
the national executive’s
responsibility. Section 26 states that:
’
(1)
The national executive is primarily responsible for the co­ordination
and management of national
disasters irrespective of whether a
national state of disaster has been declared in terms of section 27.’
[31]
The Minister may declare a national state of disaster, under certain
circumscribed circumstances.
After such declaration the Minister
acquires the powers mentioned in section 27 of the Act. Section 27
provides:
‘
(1)
In the event of a national disaster, the Minister may, by notice in
the Gazette, declare a national
state of disaster if –
(a)
existing legislation and contingency
arrangements do not adequately provide for the national executive to
deal effectively with
the disaster; or
(b)
other special circumstances warrant the
declaration of a national state of disaster.
(2)
If a national state of disaster has been declared in terms of
subsection (1), the Minister
may, subject to subsection (3), and
after consulting the responsible Cabinet member, make regulations or
issue directions or authorise
the issue of directions concerning –
(a)
the release of any available resources of the national government,
including stores, equipment,
vehicles and facilities;
(b)
the release of personnel of a national organ of state for the
rendering of emergency services;
(c)
the implementation of all or any of the provisions of a national
disaster management
plan that are applicable in the circumstances;
(d)
the evacuation to temporary shelters of all or part of the population
from the disaster­stricken
or threatened area if such action is
necessary for the preservation of life;
(e)
the regulation of traffic to, from or within the disaster­stricken
or threatened area;
(f)
the regulation of the movement of persons and goods to, from or
within the disaster­stricken
or threatened area;
(g)
the control and occupancy of premises in the disaster­stricken or
threatened area;
(h)
the provision, control or use of temporary emergency accommodation;
(i)
the suspension or limiting of the sale, dispensing or transportation
of alcoholic
beverages in the disaster­stricken or threatened
area;
(j)
the maintenance or installation of temporary lines of communication
to, from
or within the disaster area;
(k)
the dissemination of information required for dealing with the
disaster;
(l)
emergency procurement procedures;
(m)
the facilitation of response and post­disaster recovery and
rehabilitation;
(n)
other steps that may be necessary to prevent an escalation of the
disaster, or to alleviate,
contain and minimise the effects of the
disaster; or
(o)
steps to facilitate international assistance.
(3)
The powers referred to in subsection (2) may be exercised only to the
extent that this is
necessary for the purpose of –
(a)
assisting and protecting the public;
(b)
providing relief to the public;
(c)
protecting property;
(d)
preventing or combating disruption; or
(e)
dealing with the destructive and other effects of the disaster.
(4)
Regulations made in terms of subsection (2) may include regulations
prescribing penalties
for any contravention of the regulations.
(5)
A national state of disaster that has been declared in terms of
subsection (1) –
(a)
lapses three months after it has been declared;
(b)
may be terminated by the Minister by notice in the Gazette before it
lapses in terms of
paragraph (a); and
(c)
may be extended by the Minister by notice in the Gazette for one
month at a time before
it lapses in terms of paragraph (a) or the
existing extension is due to expire.’
[32]
The applicant contended that section 27 is unconstitutional because
it amounts to an impermissible
delegation of legislative power to the
Minister. It argued that Law-making is the proper domain of the
Legislature and should not
be delegated excessively to the executive.
[33]
In terms of section 43 of the Constitution, the legislative authority
of the national sphere
of government is vested in Parliament.
[13]
Parliament is therefore vested with the authority to make laws for
the national sphere of government. It must exercise that power

subject to the Constitution. This is so because, the “Constitution
is the supreme law of the Republic, law or conduct inconsistent
with
it is invalid, and the obligations imposed by it must be
fulfilled”.
[14]
South
Africa is founded, inter alia, on the values of the supremacy of the
Constitution and the rule of law.
[15]
[34]
In
Affordable
Medicines
[16]
Ngcobo J said the following:
‘
The
exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality,
which is part
of that law. The doctrine of legality, which is an incident of the
rule of law, is one of the constitutional controls
through which the
exercise of public power is regulated by the Constitution. It entails
that both the legislature and the executive
“are constrained by
the principle that they may exercise no power and perform no function
beyond that conferred upon them
by law.”  In this sense
the Constitution entrenches the principle of legality and provides
the foundation for the control
of public power.’
[17]
[35]
Parliament may delegate its legislative making functions. This was
confirmed, with qualification,
by Chaskalson P in
Executive
Council
[18]
where he said:
‘
The
legislative authority vested in Parliament under section 37 of the
Constitution is expressed in wide terms - "to make laws
for the
Republic in accordance with this Constitution." In a modern
state detailed provisions are often required for the purpose
of
implementing and regulating laws, and Parliament cannot be expected
to deal with all such matters itself. There is nothing in
the
Constitution which prohibits Parliament from delegating subordinate
regulatory authority to other bodies. The power to do so
is necessary
for effective law-making. It is implicit in the power to make laws
for the country and I have no doubt that under
our Constitution
parliament can pass legislation delegating such legislative functions
to other bodies. There is, however, a difference
between delegating
authority to make subordinate legislation within the framework of a
statute under which the delegation is made,
and assigning plenary
legislative power to another body, including, as section 16A does,
the power to amend the Act under which
the assignment is made.’
[19]
[36]
In
Mpumalanga
Petitions
[20]
Langa DP set out some of the factors to consider when determining
whether a delegation of legislative power is permissible. He
put it
thus:
‘
A
legislature has the power to delegate the power to make regulations
to functionaries when such regulations are necessary to supplement

the primary legislation. Ordinarily the functionary will be the
President or the Premier or the Member of the Executive responsible

for the implementation of the law… The factors relevant to a
consideration of whether the delegation of a law-making power
is
appropriate are many. They include the nature and ambit of the
delegation, the identity of the person or institution to whom
the
power is delegated, and the subject matter of the delegated
power.’
[21]
[37]
It is clear from the definition of disaster that it may be a sudden
or progressive natural or
man-made catastrophe, that causes great
damage or loss of life. It may be an anticipated or uncertain
calamity. It must however
be of such magnitude that it is beyond the
resource capabilities of those affected by it. In such circumstances
uncertainties and
imponderables abound when it comes to planning and
implementing a prevention or mitigating strategy.
[38]
The applicant correctly accepted that it was impossible for
Parliament to predict in advance
what the precise nature of a
national disaster would be and for it to provide a clear policy
framework to deal with such a disaster.
[39]
A disaster can be sudden, widespread and cause immense damage if it
is not arrested timeously
or its potential to cause damage minimized
speedily. Parliamentary law-making processes are not geared towards
making laws speedily.
Disasters will always affect provinces. The
process for Parliament to pass an ordinary Bill affecting provinces
is also a long
drawn out process.
[22]
The constitutional public access and involvement processes of
Parliament may also impede an effective and rapid response to a
disaster.
[23]
[40]
Since it is impossible for Parliament to legislate, in advance, ways
and means to deal with sudden
foreseen or unforeseen calamities, it
is best for it to delegate some of its functions. There is no other
realistic way of ensuring
effective governance during disasters.
The executive would be better placed to deal rapidly, comprehensively
and effectively
with disasters in a way that Parliament cannot do.
Parliament might conceivably not even be in session when a sudden
disaster strikes.
[41]
The applicant asserted that the Act gives the Minister the right to
depart from existing legislation.
This is incorrect. Nowhere in the
Act does it give the Minister the power to amend or repeal any
existing legislation. In terms
of section 26(2)(b) the national
executive, which is primarily responsible for the coordination and
management of national disasters,
must deal with a national disaster
in terms of existing legislation and contingency arrangements
augmented by regulations or directions
made or issued in terms of
section 27(2), if a national state of disaster has been declared.
This makes it plain that the Minister
does not have the power to
amend or repeal existing legislation. In fact, the national
executive, which includes the Minister,
may only augment existing
legislation and contingency arrangements. Parliament’s plenary
legislative powers are not implicated
in this matter. The Act does
not allow the Minister to usurp Parliamentary legislative powers.
[42]
The different ways in which a disaster may manifest necessitates
giving the executive wide enough
powers so that it can deal
effectively with the disaster in terms of the Act. The changing
circumstances will also necessitate
quick regulation. In the context
of COVID-19, the different alert levels and adjusted alert levels
also call for rapid regulation
making in order to ease the burden on
those affected by them. The complexity of government business
relating to COVID-19 demands
that the executive be at the business
end of the fight against the pandemic. The delegated power is, in my
view, of a regulatory
nature. The act contains sufficient policy
detail for the executive to implement the policy in accordance with
the Act.
[43]
Parliament has delegated its power to a member of the executive. It
did not delegate its power
to a faceless person. The Minister, who is
designated by the President, acts under the control of the national
executive. The delegee
is subject to parliamentary control and
oversight. Section 42(3) of the Constitution enjoins Parliament to
scrutinize and oversee
executive action.
[24]
The Minister is not exempted from this process.
[44]
Furthermore, the Minister is accountable to Parliament. Section 55(2)
of the Constitution states
that:
‘
(2)
The National Assembly must provide for mechanisms
(a)
to ensure that all executive organs of
state in the national sphere of government are accountable to it;
and
(b)
to maintain oversight of
(i)
the exercise of national executive
authority, including the implementation of legislation; and
(ii)
any organ of state.’
[45]
The subject matter of the delegated power is, as I have indicated
above, very unpredictable and
unforeseeable. The Minister is called
upon, by way of wide delegated powers, to ensure that the risk posed
by the disaster and
its consequences are efficiently and effectively
addressed. I agree with the respondents that the delegation is made
for truly
exceptional circumstances. The unpredictability and
practical regulatory measures that will have to be put in place to
deal with
a disaster must be flexible, expeditious and wide.
[46]
The applicant argued that section 27 gives the Minister unbridled
powers. This, according to
the applicant, renders the section
unconstitutional. The applicant complained that the section gives the
Minister the power to
legislate on almost anything. And at the stroke
of a pen, so the argument goes, make laws that affect fundamental
rights and criminalize
certain acts. The applicant stated that the
fact that so much power is concentrated in one-person subject to
almost no oversight
renders the section unconstitutional. These
arguments do not square up with the provisions of the Act.
[47]
The purpose of the Act is,
inter alia
,
to provide for an integrated and coordinated disaster management
policy that focuses on prevention or reducing the risk of disasters,

mitigating the severity of disasters, emergency preparedness, rapid
and effective response to disasters and post-disaster recovery.
As I
have indicated above the executive would need wide powers in order to
realize the stated purposes of the Act. In order to
ensure the proper
exercise of the wide powers given to the executive, the Act
systematically creates numerous constraints on the
executive,
specifically on the Minister who is designated to administer the Act.
[48]
The Act contains sufficient restrains on the Minister’s power.
The restrains manifest in
the fact that the Minister must exercise
the power in pursuit of certain stated positive goals. The Act also
subjects the Minister’s
power to negative constraints. I now
turn to illustrate the negative constraints and positive goals.
[49]
The Minister may not declare a state of disaster on a whim. Certain
objective requirements must
be present before the Minister declares a
national state of disaster.
[50]
First, there must be a disaster as defined in the Act.
[51]
Second, the National Centre must first classify the disaster as a
national disaster before the
Minister may declare a national state of
disaster. This is so because the classification of a disaster
designates primary responsibility
to the sphere of government that
would be responsible for the coordination and management of the
disaster.
[52]
Third, after the classification of a national disaster the national
executive must deal with
it in terms of existing legislation and
contingency arrangements. If the Minister has declared a national
state of disaster the
national executive must deal with it in terms
of national legislation and contingency arrangements as augmented by
regulations
or directions issued by the Minister or his or her
delegee. The Minister, being part of the national executive, will
perform the
functions subject to and in accordance with the decisions
of the national executive. In
Esau
[25]
,
Plasket JA summarized the position as follows:
‘
In
terms of s85(1) of the Constitution, executive authority is vested in
the President. Section 85(2) determines how that authority
is
exercised. It provides:
“
The
President exercises the executive authority, together with the other
members of the Cabinet, by- (a) implementing national legislation

except where the Constitution or an Act of Parliament provides
otherwise; (b) developing and implementing national policy; (c)

co-ordinating the functions of state departments and administrations;
(d) preparing and initiating legislation; and (e) performing
any
other executive function provided for in the Constitution or in
national legislation.”
In
terms of this section, the Constitutional Court held in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
,
the exercise of executive authority ‘is a collaborative venture
in terms of which the President acts together with the other
members
of the Cabinet’. The consequences of this allocation of power
in s85(2) were spelt out in
Minister
of Justice and Constitutional Development v Chonco and Others
.
Ministers act collectively with the President and they are all
‘collectively and individually accountable to Parliament
under
s92(2) of the Constitution’. That means that the entire
collective is responsible for every decision, whether or not

particular individual members were party to a particular
decision.’
[26]
[53]
Fourth, the Minister may only declare a national state of disaster if
existing legislation and
contingency arrangements do not adequately
provide for the national executive to deal effectively with the
disaster or when special
circumstances warrant the declaration of a
national state of disaster.
[54]
Although the words “special circumstances” are not
defined in the Act, it should,
in my view, be circumstances that
warrant immediate action beyond what is provided for in existing
legislation or which are beyond
the resource capacity of those
affected by the disaster. The circumstances must be serious and
widespread enough to call for special
measures in order to mitigate
the effects of, prepare for and respond to the disaster, and, in the
aftermath, to reconstruct the
damage caused by the disaster. Before
the declaration of a national state of disaster the Minister must be
satisfied that the requirements
mentioned above are present.
Therefore, if existing legislation or contingency arrangements
adequately provide for the risk or
no special circumstances exist, a
declaration of a national state of disaster would not be lawful.
[55]
Fifth, the Minister must consult a cabinet colleague before making
regulations or issuing directions
that have an impact on that
colleague’s portfolio.
[56]
Sixth, the Minister’s power to make regulations or issue
directions or authorize the issuing
of directions may only be
exercised in pursuance of the positive purposes stated in section
27(3) of the Act. The Minister may
only exercise those powers if they
are necessary for the purpose of (a) assisting and protecting the
public; (b) providing relief
to the public; (c) protecting property;
(d) preventing or combating disruption; or (e) dealing with the
destructive and other effects
of the disaster.
[57]
In
Helen Suzman Foundation
it was correctly stated that:
‘
In
addition to the limitation test, Section 27(3) of the DMA provides
that the powers of the Minister may only be exercised to the
extent
that it is necessary to assist the public, provide relief to it,
protect property and the like. Section 27(3) therefore
provides a
further limitation and layer of scrutiny and compliance to the
exercise of the regulatory powers of the Minister.
Therefore
on the Section 7(2) argument our view is that the threat caused by
the pandemic to the well - being and life of the people
of South
Africa would have required a state response that is grounded in
Section 7(2) and that what was required were measures
that were
reasonable and effective.’
[27]
[58]
The applicant argued that section 27 empowers the Minister to
sub-delegate her power to an impersonal
body or faceless persons. It
was argued that this is so, because the Minister’s power to
authorize the issuing of directions
is unrestricted.
[28]
[59]
There is no constitutional provision against sub-delegation. The Act
expressly gives the Minister
the power to sub-delegate. The Minister
may, in terms of the Act, therefore sub-delegate her legislation
making function. The applicant
does not have a problem with this. Its
argument is that the sub-delegation authorised by the Act is
impermissible because the Minister
may delegate her functions to a
faceless person. In
AAA
Investments
,
[29]
Langa CJ said that Ministers will of necessity have to delegate their
powers, which do not require the exercise of a political
discretion,
to officials in their respective Departments.
[30]
Ministers
may therefore delegate certain limited functions to officials in
their respective Departments.
[60]
The applicant’s objection regarding the Minister’s power
to sub-delegate the issuance
of directives to unspecified persons has
merit. Earlier in this judgment, I pointed out that the identity of
the person to whom
power is delegated is important. In my view the
same holds true of the person to whom power is sub-delegated.
[61]
Since section 27(2) purports to give the Minister the power to
sub-delegate her power to any
person or body it may be an
impermissible delegation of power. An expansive interpretation of the
sub-section might be problematic
whereas a restrictive one would be
in conformity with the Constitution.
[62]
We are enjoined to interpret this sub-section in conformity with the
Constitution. In
Hyundai
[31]
it was said:
‘…
Accordingly,
judicial officers must prefer interpretations of legislation that
fall within constitutional bounds over those that
do not, provided
that such an interpretation can be reasonably ascribed to the
section.
Limits
must, however, be placed on the application of this principle.24 On
the one hand, it is the duty of a judicial officer to
interpret
legislation in conformity with the Constitution so far as this is
reasonably possible. On the other hand, the legislature
is under a
duty to pass legislation that is reasonably clear and precise,
enabling citizens and officials to understand what is
expected of
them.25 A balance will often have to be struck as to how this tension
is to be resolved when considering the constitutionality
of
legislation. There will be occasions when a judicial officer will
find that the legislation, though open to a meaning which
would be
unconstitutional, is reasonably capable of being read “in
conformity with the Constitution”. Such an interpretation

should not, however, be unduly strained.’
[32]
[63]
The factors which are relevant in order to determine whether
sub-delegation is allowed may in
my view also be harnessed, with the
necessary changes, in order to determine whether expressly permitted
sub-delegation passes
constitutional muster. These factors include,
nature and impact of the power; extent of the sub-delegation and
continued review
by the original delegator; practical necessity and
the identity and importance of the delegator and the delegee.
[64]
The sub delegation in terms of section 27(2) is very wide and may
include policy decisions, which
are decisions that should preferably
be made by a member of the national executive. The power to issue
directives may include the
power to limit fundamental rights. The
power to limit fundamental rights should not and cannot be exercised
by an unaccountable,
faceless person or body.
[65]
The sub-delegation in terms of section 27(2) may involve the exercise
of a discretion. The discretion
is not a mechanical one, but includes
a significant amount of policy making and careful decision
making.
[33]
This kind of
delegation should not be given to an official but may be given to a
cabinet member.
[66]
With regard to practical necessity,
Baxter
says the following:
‘
Although
the breadth, complexity and impact of the power might constitute
important reasons for requiring its holder to exercise
it personally,
these factors might also constitute the very reasons for construing a
power of delegation: the number of decisions
that have to be made
could make it practically impossible for the power to be exercised
personally. The courts have shown some
flexibility; they have
recognized that the benefits of efficiency and localized, ad hoc
discretionary decision-making sometimes
outweigh the disadvantages of
delegation and have found delegation in such circumstances to be
valid.’
[34]
[67]
The scope of the issues that the Minister is authorized to issue
regulations and directives about,
is very wide and inter-sectoral. It
is practically desirable that the Minister sub-delegate her power to
her colleagues who have
knowledge about their respective portfolios.
[68]
Disaster Management is defined as an integrated multi-sectoral,
multi-disciplinary process of
planning and implementation of measures
aimed at dealing rapidly with the calamity and its effects. It
therefore needs a polycentric
management approach. The respective
Ministers are the best suited to formulate policies and strategies
for their respective Departments
in order to mitigate the risk and
effects of a disaster.
[69]
Ministers, as part of the National Executive, are accountable to
Parliament. Their decisions
are subject to parliamentary scrutiny.
They may make policy decisions pertaining to their respective
Departments. They are, in
terms of the Act, subject to the collegial
control of the Minister and the National Executive as a whole. In
most cases, legislation
allows Ministers to make regulations for
issues mentioned in the particular legislation.
[70]
In my judgment section 27(2) must be interpreted to mean that the
Minister may authorise a fellow
Minister to issue directions. This
interpretation is not strained and is in conformity with the
Constitution.
[71]
The Minister has in any event  authorized  only her cabinet
colleagues to issue directions
regarding COVID-19, within their
respective portfolios, either on their own or after consulting a
fellow Minister.
[35]
[72]
The applicant further contended that section 27(2)(n) is too wide
because it essentially allows
the Minister to authorize a cabinet
colleague to issue directions that may be necessary to prevent an
escalation of the disaster,
or to alleviate, contain and minimize the
effects of the disaster. Likewise, so the applicant argued,
regulation 4(10)(c) is too
wide because it provides that:
‘
Any
Cabinet member may issue and vary directions, as required, within his
or her mandate, address, prevent and combat the spread
of Covid-19
and its impact on matters relevant to their portfolio from time to
time, as may be required, including-
(a)
disseminating information required for
dealing with the national state of disaster;
(b)
implementing emergency procurement
procedures;
(c)
taking any other steps that may be
necessary to prevent an escalation of the national state of disaster
or to, contain and minimize
the effects of the national state of
disaster; or
(d)
taking steps to facilitate international
assistance.’
[73]
It must be emphasized that this pandemic has practically affected all
facets of our lives. Its
effects are multi-sectoral and cut across
ministerial portfolios. It is therefore a very pragmatic approach to
give a specific
Minister with intimate knowledge about his or her
portfolio the right to issue directions about matters within his or
her mandate.
That particular Minister will also have the benefit of
experts within his or her Department to advise him or her on the
necessary
measures to contain the effects of the pandemic on that
particular Department.
[74]
The applicant is correct in its argument that the regulations give
cabinet members far-reaching
legislative powers, which in many ways
are less constrained than Parliament’s powers. Those powers,
however, relate only
to COVID-19 matters, which are matters that
demand a swift, integrated, necessary and effective response.
[75]
The applicant argued that section 27 is invalid because the Act does
not give guidance to the
Minister. It pointed out that in
Dawood
[36]
the Constitutional Court held that legislation that grants a
decision-maker a discretion that can be exercised in a way that
infringes
constitutional rights can be unconstitutional if it is not
accompanied by guidelines that would prevent that discretion from
being
exercised in an unconstitutional manner. In
Dawood
O’Regan J said:
‘
Discretion
plays a crucial role in any legal system. It permits abstract and
general rules to be applied to specific and particular
circumstances
in a fair manner. The scope of discretionary powers may vary. At
times, they will be broad, particularly where the
factors relevant to
a decision are so numerous and varied that it is inappropriate or
impossible for the legislature to identify
them in advance.
Discretionary powers may also be broadly formulated where the factors
relevant to the exercise of the discretionary
power are indisputably
clear. A further situation may arise where the decision-maker is
possessed of expertise relevant to the
decisions to be made. There is
nothing to suggest that any of these circumstances is present here.
We
must not lose sight of the fact that rights enshrined in the Bill of
Rights must be protected and may not be unjustifiably infringed.
It
is for the legislature to ensure that, when necessary, guidance is
provided as to when limitation of rights will be justifiable.
It is
therefore not ordinarily sufficient for the legislature merely to say
that discretionary powers that may be exercised in
a manner that
could limit rights should be read in a manner consistent with the
Constitution in the light of the constitutional
obligations placed on
such officials to respect the Constitution. Such an approach would
often not promote the spirit, purport
and objects of the Bill of
Rights. Guidance will often be required to ensure that the
Constitution takes root in the daily practice
of governance. Where
necessary, such guidance must be given. Guidance could be provided
either in the legislation itself, or where
appropriate by a
legislative requirement that delegated legislation be properly
enacted by a competent authority.’
[37]
[76]
Dawood
is
distinguishable from this case. In
Dawood,
officials were given discretionary powers without any express
constraints. The Act, however, as I pointed out earlier, puts various

constraints on the exercise of the Minister’s powers. The Act
contains sufficient guidance to the Minister to enable her
to
exercise the powers granted by it constitutionally. Those affected by
the decisions will clearly be in a position to know exactly
on what
basis to challenge her decisions which adversely affect them. The
objective requirements to which the decisions are subjected
curtail
her power.
[77]
The applicant stated that the Minister has unbridled powers because
she decides whether to declare
a national state of disaster and when
to extend it. I have already dealt with the factors that the Minister
must consider before
declaring a state of national disaster. The
Minister cannot on a whim extend the state of national disaster. I
agree with the Minister’s
contention that the power of
extension of the national state of disaster is by clear implication
subject to the same requirements
as the original declaration of the
national state of disaster terms of section 27(1).
[78]
The legislative making power of the executive is subject to the
Constitution and the Bill of
Rights entrenched in it. When
legislation limits rights, such limitation will pass constitutional
muster only to the extent that
the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, after
taking into consideration all relevant
factors.
[38]
This was
explained as follows in
Helen
Suzman Foundation
:
‘
It
is also important to point out that the regulation making power in
the DMA is subject to the scrutiny and compliance with the

Constitution and that the State does not enjoy carte balance (sic) to
regulate as it pleases. Where the effect of the regulatory
regime is
to effect a limitation on rights, such a limitation must meet the
test set out in the Constitution failing which the
Courts may strike
down the limitation as unconstitutional. Again, it is not the case
for the Applicant that the limitation of rights
that has occurred is
in conflict with the Constitution.’
[39]
[79]
The Minister’s legislative powers are subject to the
Constitution and existing laws. The
issue of whether regulation
making by a Minister is administrative action within the meaning of
the Promotion of Administrative
Justice Act (PAJA)
[40]
has not yet been definitively decided by the Constitutional Court.
The Supreme Court of Appeal has held that it is.
[41]
We
are bound by that holding.
[80]
All Ministers’ regulations are therefore subject to judicial
review based on legality and
PAJA.
[81]
The applicant asserted that there is insufficient parliamentary
oversight and involvement in
the raft of delegated legislation that
is being made almost daily by the executive. It contended that
Parliament should have a
veto
power over the Minister’s power to declare a national state of
disaster and the making of regulations pursuant to such declaration.

It stated that a Parliamentary
veto
power “would ensure that the elected representatives of South
Africa have an opportunity to engage with, question and ultimately

decide whether to disapprove of the measures taken by the Minister.
In other words, it would place the debate about these measures
where
they belong - before the elected representatives of South Africa and
in the public eye”.
[82]
The oversight issue was already addressed in
Freedom
Front Plus
. I add these few comments to
emphasize what the second and third respondents stated in concluding
that the current Parliamentary
oversight and accountability measures
are indeed sufficient.
[83]
They pointed out that because national disasters are unpredictable
and in most cases fleeting,
it is impractical for Parliament to
delegate powers to the Minister with millimetre precision. They
further stated that the Constitution,
the Parliamentary oversight and
accountability model and the rules of Parliament enable it, without
the
veto
power, to exercise its mandate completely.
[84]
In order to ensure that its oversight and accountability mandate is
not hampered, during the
pandemic, it adopted specific rules to
facilitate virtual sittings in the National Assembly as well as the
National Council of
Provinces. Both houses continued with their
business even during the COVID-19 lockdown. The various committees of
the National
Assembly as well as the select committees of the NCOP
continued with their oversight duties. They set out in detail how and
when
members of the national executive were called to account to
Parliament during the national state of disaster. On the contrary,
the applicant could not point to specific failures of Parliament to
conduct its oversight and accountability functions.
[85]
We may not prescribe to Parliament how it must execute its oversight
function. This was made
plain in
Nkandla
.
[42]
The Constitutional Court found as follows:
‘
It
falls outside the parameters of judicial authority to prescribe to
the National Assembly how to scrutinise executive action,
what
mechanisms to establish and which mandate to give them, for the
purpose of holding the Executive accountable and fulfilling
its
oversight role of the Executive or organs of State in general. The
mechanics of how to go about fulfilling these constitutional

obligations is a discretionary matter best left to the National
Assembly. Ours is a much broader and less intrusive role. And that
is
to determine whether what the National Assembly did does in substance
and in reality amount to fulfilment of its constitutional

obligations. That is the sum-total of the constitutionally
permissible judicial enquiry to be embarked upon. And these are some

of the “vital limits on judicial authority and the
Constitution’s design to leave certain matters to other
branches
of government”. 95 Courts should not interfere in the
processes of other branches of government unless otherwise authorised

by the Constitution.96 It is therefore not for this Court to
prescribe to Parliament what structures or measures to establish or

employ respectively in order to fulfil responsibilities primarily
entrusted to it. Courts ought not to blink at the thought of

asserting their authority, whenever it is constitutionally
permissible to do so, irrespective of the issues or who is involved.

At the same time, and mindful of the vital strictures of their
powers, they must be on high alert against impermissible encroachment

on the powers of the other arms of government.’
[43]
[86]
It is correct that the Act gives the Minister wide powers. I must,
however, point out that even
wide rivers have banks. The negative
constraints, positive objectives, judicial review and Parliamentary
oversight constitute sturdy
banks that ensure the Minister’s
power is sufficiently limited. Section 27 of the Act withstands
constitutional muster. This
application ought to be dismissed.
[87]
In light of my conclusion, I do not deem it necessary to deal with
the appropriateness of the
remedy suggested by the applicant.
[88]
All the parties were in agreement that the
Biowatch
[44]
principle should apply with regard to costs.
[89]
I accordingly make the following order:
[89.1]
Condonation is granted for the applicant’s non-compliance with
the prescribed forms, time periods and service
requirements and leave
is granted for this application to be heard as one of urgency in
terms of Uniform Rule 6(12).
[89.2]
The application is dismissed with no order as to costs.
C.J.
MUSI, JP
I concur.
L. WINDELL, J
MATOJANE J
[90]
I have had the benefit of studying the main judgment. I am
respectfully unable to concur fully
in the reasoning and the outcome
it reaches. The application concerns a critical question relating to
the limits of the delegation
of plenary legislative power by
Parliament. This issue lies at the heart of our constitutional
democracy.
[91]
Briefly stated, my reasons for disagreeing with the main judgment are
these:
(a)
Section 27(2)
of the
Disaster Management Act
("the DMA")
constitutes an excessive delegation of legislative power by
Parliament to the Minister.
(b)
The scope of the discretion granted to the Minister is broad and
open-ended
[45]
, with
insufficient guidance provided as to how to exercise that power.
(c)
The process of executive law-making lacks transparency, public
participation and debate
of the parliamentary process and reduces
accountability in the exercise of delegated legislative power.
(d)
For any of the reasons set out above,
I am of the view that
section 27(2)
is unconstitutional.
[92]
The essential point of difference I have with the main judgment is
that
section 27(2)
of the DMA grants the Executive excessive
regulation-making powers to legislate, interpret and execute
legislation that has wide-ranging
limitations on the fundamental
rights of all citizens without requiring that such legislation be
first tabled in Parliament and
approved by Parliament to ensure
accountability and openness of Government.
[93]
I accept that
Section 27(2)
is intended to enable the CoGTA Minister
to swiftly enact regulations that are responsive to a sudden national
disaster. I also
accept that Parliament cannot legislate in advance
to meet the demands of combating unforeseen calamities. Unless the
regulations
were regarded as too urgent to await prior consultation
with the National Assembly, there is no reason why the Minister of
CoGTA
could not table in Parliament a copy of any declaration of a
national disaster; any regulations made or directions issued under
section 27(2)
and any extensions of the COVID-19 state of Disaster to
enable the National Assembly to make recommendations or even
invalidate
them as they intended to cover even the post-Disaster
period.
[46]
[94]
Since the declaration of the national state of Disaster on 25 March
2020 and despite numerous
meetings between members of Parliament and
the Executive and direct consultation by the President with political
party leaders
represented in Parliament, no covid related legislation
to enhance and strengthen Parliament's oversight of the delegated
legislation
has been forthcoming. It bears mentioning that such
meetings are not parliamentary oversight but mere presentations by
the Executive.
[95]
Parliament has not made any broad policy decisions in relation to
COVID-19 at all; this is because
of the breadth of
section 27
and the
manner in which it excludes parliamentary involvement. This is a
comprehensive divesting of legislative power by Parliament
to the
Executive.
[96]
The Constitution's transformative aim is to ensure that the
fundamental democratic values of
accountability, responsiveness and
openness are realised. Chaskalson J in New Clicks South Africa
[47]
stated that the Constitution calls for an open and transparent
Government and requires public participation in making laws by
Parliament and deliberative legislative assemblies. The same was
echoed by Sachs J in Executive Council I when he stated that:
'The
reason why full legislative authority, within the constitutional
framework mentioned above, is entrusted to Parliament and
Parliament
alone would seem to be that the procedures for open debate subject to
ongoing press and public criticism, the visibility
of the
decision-making process, the involvement of civil society in relation
to committee hearings, and the pluralistic interaction
between
different viewpoints which parliamentary procedure promotes, are
regarded as essential features of the open and democratic
society
contemplated by the Constitution. It is Parliament's function and
responsibility to deal with the broad and controversial
questions of
legislative policy according to these processes’
[48]
.
[97]
Rehnquist J in the United State Supreme Court
[49]
explained the importance of the rule against excessive delegation of
legislative power as follows:
‘
First
and most abstractly, it ensures to the extent consistent with orderly
governmental administration that important choices of
social policy
are made by Congress, the branch of our Government most responsive to
the popular will. Second, the doctrine guarantees
that, to the extent
that Congress finds it necessary to delegate authority, it provides
the recipient of that authority with an
'intelligible principle' to
guide the exercise of the delegated discretion. Third, the doctrine
ensures that courts charged with
reviewing the exercise of delegated
legislative discretion will be able to test that exercise against
ascertainable standards.’
[98]
Parliament does not possess the legislative power as original power.
The
authority of Parliament to make laws is contained in section 43 of
the Constitution, which vests the national legislative authority
in
Parliament, an elected and deliberative body. The Legislature
cannot
further delegate delegated powers as expressed in the legal maxim
delegare
non potent delegare
.
Chaskalson P in Executive Council, Western Cape
[50]
affirmed that:
‘…
In a modern state,
detailed provisions are often required for the purpose of
implementing and regulating laws, and Parliament cannot
be expected
to deal with all such matters itself. There is nothing in the
Constitution that prohibits Parliament from delegating
subordinate
regulatory authority to other bodies. The power to do so is necessary
for effective law-making. It is implicit in the
power to make laws
for the country, and I do not doubt that under our Constitution,
Parliament can pass legislation delegating
such legislative functions
to other bodies.’
[99]
The Constitutional Court defined the limits to which legislative
power may be delegated by explaining
the crucial distinction
between
delegating authority to make subordinate legislation within the
framework of an empowering statute, which is allowed and
assigning
plenary legislative powers to another body that is not
[51]
.
The power under scrutiny, in that case, was
section 16A
of the
Local
Government Transition Act 209 of 1993
, which purportedly conferred
power on the President to amend the Act by proclamation.
The section was declared invalid
for inconsistency with the
Constitution in that its provisions amounted to a delegation of
plenary legislative authority to another
body.
[100]
In Justice Alliance,
[52]
the
Constitution required an Act of Parliament to extend the terms of
office of any Constitutional judge, including the Chief Justice.

Parliament chose to give its power to the President through
section
8(a)
of the
Judges' Remuneration and Conditions of Employment Act 47
of 2001
. The President exercised that power by deciding to extend the
term of the then Chief Justice. The Constitutional Court held that
it
was 'self-evident that
section 8(a)
itself did not extend the Chief
Justice's tenure but instead surrendered power to the President to do
so if he wished: The Court
held that:
‘…
primary
reason for delegation is to ensure that the Legislature is not
overwhelmed by the need to determine minor regulatory
details.
Thus, delegation relieves Parliament from dealing with detailed
provisions that are often required for the purpose of
implementing
and regulating laws. As Chaskalson P observed in
Executive
Council I
, delegation "is
necessary for effective law-making".  However, the Court
properly draws a distinction between delegation
to make subordinate
legislation within the framework of an empowering statute and
"assigning plenary legislative powers to
another body’.
Section
8(a)
does not delegate the determination of mere minor detail to the
Executive but shifts all of the power granted by
section 176(1)
from
Parliament to the Executive. The provision usurps the legislative
power granted only to Parliament and therefore constitutes
an
unlawful delegation.
[101]
As in the present case, the broad regulation-making powers of the
Minister goes beyond stipulating the details
necessary for the
implementation of the legislation passed by Parliament. The section
transfer plenary legislative power exclusively
to the Minister of
CoGTA without the democratic input of Parliament. In terms of
section
27(1)
of the DMA, the CoGTA Minister is empowered to declare a
national Disaster and to make regulations "after consulting the
responsible
cabinet member". She is solely responsible for the
powers and functions assigned to her by the President as section
92(2)
of the Constitution states that
"Members of the Cabinet
are accountable collectively and individually to Parliament for the
exercise of their powers and the
performance of their functions"
.
There is no requirement that the Cabinet must discuss and agree to
the declaration of the Disaster and to the regulations promulgated
in
terms of the proclamation. The Cabinet as a collective cannot
overrule her decisions.
[102]
The Minister of CoGTA is empowered to declare a national state of
Disaster, if, in her view,
existing legislation
and contingency arrangements do not adequately provide for the
national Executive to deal effectively with
the Disaster; or
other special circumstances warrant the declaration of a national
state of Disaster". The "other
special circumstances"
are not defined. Parliament has no say on whether existing
legislation and contingency arrangements
do not adequately provide
for the national Executive to deal effectively with the Disaster.
[103]
The Minister of CoGTA decides what a national Disaster is, when it
may be declared, and its extension requirements.
The Minister keeps
her powers for as long as the state of Disaster continues.
[104]
Most importantly, the CoGTA Minister not only decides when to assign
herself the regulatory powers under section
27(2), she is empowered
to extend the national state of Disaster for a month at a time
without parliamentary approval or any member
of the Executive. There
is no limitation to the number of extensions the Minister could
effect in terms of section 27(5)(c)
[53]
.
With no indication as to when the vaccine will be fully rolled out,
and the time the post-pandemic economic recovery will take,
the
Minister of CoGTA will continue to run the country without any
parliamentary input.
[105]
Section 27 empower the Minister to delegate the power to make
directions to others. There is no restriction to
whom she can grant
this power. The Minister has permitted every other Minister to pass
COVID regulations relating to their department
without parliamentary
oversight or even the oversight of the CoGTA Minister herself. This
is not a lawful delegation.
[106]
Section 27(4) provides that regulations made under section 27(2) 'may
include regulations that prescribe penalties
for contravention of the
regulations. This has a significant impact on an individual's rights
and liberties and would generally
fall within the Parliament's domain
as it has far-reaching consequences. This is yet another example of
the Legislature delegating
its legislative power to the Executive.
[107]
The main judgment in paragraph 76 states that
the
Act contains sufficient guidance to the Minister to exercise the
powers granted to her.  Granted, the powers of the Minister
in
section 27(2) are subject to section 27(3), which provides as
follows:
'the powers referred to
in subsection (2) may be exercised only to the extent that this is
necessary for the purpose of—
(a) assisting and
protecting the public;
(b) providing relief to
the public;
(c) protecting property;
(d) preventing or
combating disruption; or
(e)
dealing with the destructive and other effects of the Disaster’
[108]
Neither the Act nor the regulations guide as to circumstances
relevant to the Minister's exercise of her broad
discretionary powers
in a constitutional manner, given that section 27 legislation has the
potential to violate rights. Deliberations
that usually accompanies
the drafting of delegated legislation is absent, and there is no
guidance as to when the limitation of
rights will be justifiable. The
listed restrictions permit far-reaching interventions to assist or
protect the public; prevent
or combat disruption; dealing with the
destructive and other effects of the Disaster. Without the policy
framework within which
the Minister must operate, it becomes
difficult for the courts to determine how the Minister takes a
particular decision or how
she arrived at the decision to extend the
state of the Disaster.
[109]
Dawood
[54]
highlighted
the importance of providing guidance in the original legislation that
will prevent the discretion from being exercised
in an
unconstitutional manner where too much discretionary power is
conferred on the Executive. The Court stated that:
‘
We
must not lose sight of the fact that rights enshrined in the Bill of
Rights must be protected and may not be unjustifiably infringed.
It
is for the Legislature to ensure that, when necessary, guidance is
provided as to when limitation of rights will be justifiable.
It
is therefore not ordinarily sufficient for the Legislature merely to
say that discretionary powers that may be exercised
in a manner that
could limit rights should be read in a manner consistent with the
Constitution in the light of the constitutional
obligations placed on
such officials to respect the Constitution.  Such an approach
would often not promote the spirit, purport
and objects of the Bill
of Rights.  Guidance will often be required to ensure that the
Constitution takes root in the daily
practice of governance.  Where
necessary, such guidance must be given.  The guidance could be
provided either in the
legislation itself or, where appropriate, by a
legislative requirement that delegated legislation be properly
enacted by a competent
authority.’
[110]
The main judgment in paragraph 41 states that the purpose of the
regulations and directions made under section
27 is merely to augment
existing legislation and contingency arrangements and that the
Minister has no power to repeal, override
or contradict any existing
law. Section 27 permit the making of regulations inconsistent with
the primary legislation. The main
judgment is well aware of the
decision In Esau,
[55]
where it was held that Section 27(2) is broad enough to "intrude
upon existing legislation in a Disaster situation in
which the DMA
builds in checks, balances and limitations" and the judgment
in   BAT - SA
[56]
,
where it was held that it was not
ultra
vires
for the Minister to pass regulations inconsistent with existing acts,
in so far as the inconsistency did not amount to a prohibition.
[111]
The above two decisions show that excessive delegation of legislative
power diminishes the courts' capacity to
limit the abuse of power as
there are no ascertainable standards to test the exercise of
delegated legislative discretion.
[112]
The Minister's power goes beyond augmenting existing legislation.
Section 27(2)(g) of the DMA permits the Minister
to make subordinate
legislation that suspends or limit the transportation and sale of
alcoholic beverages; this is even though
those matters are allowed
and regulated by and in terms of national and provincial primary
legislation (i.e. the national
Liquor Act 59 of 2003
and provincial
liquor laws made by the provincial legislatures).
[113]
For the reasons stated above, I find that
section 27
of the DMA
delegates wide powers to the Minister of CoGTA and is accordingly
unconstitutional.
[114]
The applicant seeks an order that would
read into
section 27
of the DMA the requirement that the CoGTA
Minister table every declaration of the national state of Disaster
every extension thereof,
and regulations and directions enacted under
section 27
in Parliament, and that Parliament be given the right to
disallow regulations and directions enacted or extensions of any
national
state of Disaster.
[115]
The Constitutional Court
[57]
has held that "reading-in" should be resorted to sparingly
because the "actual act of writing or editing legislation
may
constitute a possible encroachment by the Judiciary on the terrain of
the Legislature and, therefore, a violation of the separation
of
powers".
[116]
It should be for Parliament and not the Court to determine how to
perform its functions of oversight over the
Executive. In National
Coalition for Gay and Lesbian Equality and Others,
[58]
The Constitutional Court stated that its remedy of reading-in was not
final and would eventually be controlled by the Legislature
it held
that:
‘
It
should also be borne in mind that whether the remedy a Court grants
is one striking down, wholly or in part, or reading into
or extending
the text, its choice is not final. Legislatures are able, within
Constitutional limits, to amend the remedy, whether
by re-enacting
equal benefits, further extending benefits, reducing them, amending
them, 'fine- tuning' them or abolishing them.
Thus they can exercise
final control over the nature and extent of the benefits.’
[117]
I would have declared the section unconstitutional and suspend the
declaration of invalidity
for two years to enable Parliament to amend
the DMA to make it constitutional. This will not undermine the
Minister's ability to
continue to respond swiftly and effectively to
a sudden national disaster and will not invalidate any portion of the
CoGTA Minister's
response to COVID-19, the national Disaster, as well
as the regulations and directions made under it.
K.E.
MATOJANE, J
Appearances:
For the
Applicants:

Adv S. Budlender SC
with Adv M. Musandiwa &
Adv P. Oliver
Instructed by Klagsbrun
Edelstein
Bosman Du Plessis Inc.
Pretoria
For the 1
st
&
4
th
Respondents:
Adv. W. Trengove SC
with Adv A. Hassim &
Adv T. Moshodi
Instructed by State
Attorney
Pretoria
For the 2
nd
&
3
rd
Respondents:
Adv. N.H. Maenetje SC
with Adv N. Muvangua
Instructed
by State Attorney
Pretoria
[1]
Act
57
of 2002.
[2]
Freedom
Front Plus v The President of the Republic of South Africa and
Others
[2020] 3 All SA 762
(GP) (6 July2020); (22939/2020) [2020]
ZAGPPHC 266.
[3]
Ibid at para 26.
[4]
The
Helen Suzman Foundation v The Speaker of the National Assembly and
Others (32858/2020) [2020] ZAGPPHC 574 (5 October 2020).
[5]
Ibid at para 29.
[6]
Ibid paras 68 and 69.
[7]
Turnbull-Jackson
v Hibiscus Coast Municipality and Others 2014 (6) SA 592 (CC).
[8]
Ibid at para 72.
[9]
Section
3 of the Act provides that ‘this Act is administered by a
Cabinet member designated by the President.’
[10]
Section 1.
[11]
Section 8.
[12]
Section 15(1)(f).
[13]
Section 43(a) of the Constitution of the Republic of South Africa,
1996.
[14]
Section 2 of the Constitution.
[15]
Section 1 of the Constitution.
[16]
Affordable Medicines Trust v Minister of Health 2006 (3) SA 247
(CC).
[17]
Ibid 49.
[18]
Executive
Council, Western Cape Legislature, and Others v President of the
Republic of South Africa and Others 1995 (4) SA 877
(CC).
[19]
Ibid para 51. Justice Alliance of SA V President of the RSA
2011 (5)
SA 388
(CC) at paras [53] and [54].
[20]
In re Constitutionality of the Mpumalanga Petitions Bill, 2000 2002
(1) SA 447 (CC).
[21]
Ibid para [19].
[22]
Section 76 of the Constitution.
[23]
Section 59 and 72 of the Constitution.
[24]
The
Constitution of the Republic of South Africa, Act 108 of 1996.
[25]
Esau and Others v Minister of Co-Operative Governance and
Traditional Affairs and Others (611/2020)
[2021] ZASCA 9
(28 January
2021).
[26]
Ibid paras [54] and [55].
[27]
Ibid paras [70] and [71]. Esau ibid at para [16].
[28]
Section 27(2).
[29]
AAA Investments (Propriety) Limited v The Micro Finance Regulatory
Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC).
[30]
At para 89.
[31]
The
Investigating Directorate: Serious Economic Offenses and Others v
Hyundai Motor Distributors (Pty) Ltd and others 2001 (1)
SA 545
(CC).
[32]
Ibid paras [23] and [24].
[33]
Baxter Administrative Law Juta & CO 1991 at 438 and 440.
[34]
Ibid at 441.
[35]
Government Gazette No. 43258 of 29 April 2020.
[36]
Dawood, Shalabi and Thomas v Minister of Home Affairs 2000 (3) SA
936 (CC).
[37]
At paras 53 and 54.
[38]
Section 36 of the Constitution reads:
‘
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that
the limitation is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom,
taking into account all
relevant factors, including
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision of
the Constitution, no law may limit any
right entrenched in the Bill
of Rights.’
[39]
Ibid para 69.
[40]
Act 3 of 2000.
[41]
Esau Ibid paras 83 and 84.
[42]
Economic Freedom Fighters v Speaker of the National Assembly and
Others; Democratic Alliance v Speaker of the National Assembly
and
Others 2016 (3) SA 580 (CC).
[43]
Ibid at para 93.
[44]
Biowatch Trust v Registrar, Genetic Resources and Others
2009 (6) SA
232
(CC) at paras 22 and 23.
[45]
Helen
Suzman Foundation v Speaker of the National Assembly and Others
(32858/2020) [2020] ZAGPPHC 574 (5 October 2020) in paragraph
11
this court explained that:
‘
It
is clear that the power to make regulations and issue directions is
wide ranging and extensive in dealing with the effects
of a Disaster
but at the same time, also has the potential to have far reaching
impact on the lives of ordinary South Africans.
Since the
declaration of the national state of Disaster, there has been much
regulation making over the past few months covering
a wide range of
issues.’
[46]
Helen
Suzman Foundation supra para 91:
‘…
the
DMA was intended to cover Disasters of a progressive nature (which
must read extended in duration), that it required continuous

responses and measures (far removed from a once off intervention)
and that it also extended to cover the post Disaster period.
All of
this militate against an interpretation that the DMA was intended as
a short term measure and that the powers it bestows
on the Minister
were intended to be of limited duration only.’
[47]
Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA
para 113.
[48]
Executive Council, Western Cape Legislature v President of the
Republic of South Africa
[1995] ZACC 8
;
1995 (4) SA 877
(CC) (‘
Executive
Council
I
’)
para
205.
[49]
Industrial Union Department, AFL-CIO v American Petroleum Institute
[1980] USSC 152
;
448 US 607
at 685–686 (1980).
[50]
Executive Council, Western Cape Legislature v President of the
Republic of South Africa 1995 (4) SA 877 (CC).
[51]
Ibid
at para 51.
See
also Bezuidenhout v Road Accident Fund
2003 (6) SA 61
(SCA) para 10.
[52]
Justice Alliance of South Africa v President of the Republic of
South and Others
2011 (5) SA 388
(CC) at paras 61-62.
[53]
Helen
Suzman Foundation v Speaker of the National Assembly [2020] ZAGPP
574 at 103 – 104.
[54]
Dawood and Another v Minister of Home Affairs and Others; Shalabi
and Another v Minister of Home Affairs and Others; Thomas and

Another v Minister of Home Affairs and Others
[2000] ZACC
8
;
2000 (3) SA 936
(CC)
[2000] ZACC 8
; ;
2000 (8) BCLR 837
(CC).
[55]
Esau v Minister of Co-operative Govenance and Traditional Affairs
2020 (11) BCLR 1371
(WCC) para 175
[56]
The
British American Tobacco South Africa (Pty) Ltd and Others v
Minister of Co-operative Governance and Traditional Affairs and

Others (6118/2020) [2020] ZAWCHC 180 (11 December 2020).
[57]
Provincial
Minister for Local Government, Environmental Affairs and Development
Planning, Western Cape v Municipal Council of
the Oudtshoorn
Municipality and Others (CCT05/15)
[2015] ZACC 24
;
2015 (6) SA 115
(CC);
2015 (10) BCLR 1187
(CC) (18 August 2015).
[58]
National
Coalition for Gay and Lesbian Equality and Others v Minister of
Home Affairs and Others (CCT10/99)
[1999] ZACC 17
;
2000 (2) SA 1
;
2000 (1) BCLR 39
(2 December 1999) at para 76.