CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 150/24

In the matter between:


DEMOCRATIC ALLIANCE Applicant

and

MINISTER OF CO-OPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS First Respondent

SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent

CHAIRPERSON OF THE NATIONAL COUNCIL OF
PROVINCES Third Respondent

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Fourth Respondent



Neutral citation: Democratic Alliance v Minister of Co -operative Governance and
Traditional Affairs and Others [2026] ZACC 8

Coram: Dambuza AJ, Goosen AJ, Kollapen J, Majiedt J, Mhlantla J,
Opperman AJ, Rogers J, Theron J and Tshiqi J

Judgments: Tshiqi J (minority): [1] to [156]
Theron J (majority): [157] to [228]

Heard on: 6 February 2025

Decided on: 27 February 2026

Summary: Section 27 of the Disaster Management Act 57 of 2002 —
constitutional challenge — parliamentary oversight — state of

TSHIQI J
2

emergency — national state of disaster — delegation of
subordinate legislation — accountability and oversight




ORDER



On application for leave to appeal from the Supreme Court of Appeal (hearing an appeal
from the High Court of South Africa, Gauteng Division, Pretoria):
1. Leave to appeal is granted.
2. The appeal is dismissed.


JUDGMENT




TSHIQI J (Dambuza AJ and Rogers J concurring):


Introduction
[1] This is an application for leave to appeal against the judgment and order of the
Supreme Court of Appeal. The order flowed from an application by the applicant, the
Democratic Alliance (DA), then an official opposition political party in the
National Assembly in terms of section 57(2)(d) of the Constitution, where it sought an
order declaring section 27 of the Disaster Management Act 1 (DMA) unconstitutional
and invalid.

Parties
[2] The first respondent is the Minister of Co-operative Governance and Traditional
Affairs (COGTA) (Minister), who is responsible for administering the DMA and is

1 57 of 2002.

TSHIQI J
3

empowered in terms of the impugned section 27 to declare a national disaster subject to
the conditions in subsections 27(1) to (5).2 The second respondent is the Speaker of the
National Assembly. The third respondent is the Chairperson of the National Council of
Provinces. The second and third respondents are cited in th eir official capacities
because the application involves legislative and oversight powers of Parliament under
the Constitution and the relief sought would involve the National Assembly. The
second and third respondents will collectively be referred to as Parliament. The fourth
respondent is the President of the Republic of South Africa (President). He is cited in
his official capacity as the head of the National Executive under section 83(a) of the
Constitution and because section 26(1) of the DMA provid es that the
National Executive is primarily responsible for the co -ordination and management of
national disasters. No relief is sought against the third and fourth respondents.

Factual background
[3] The Severe Acute Respiratory Syndrome Coronavirus 2 is a strain of coronavirus
that caused the coronavirus disease of 2019 (COVID -19). The first outbreak of
COVID-19 was identified in Wuhan, in the Hubei Province in China, during
December 2019. On 30 January 2020, the World Health Organization declared the
outbreak a public health emergency of international concern and on 11 March 2020,
declared it a pandemic. On 15 March 2020, the Minister issued a notice declaring a
national state of disaster on account of the COVID-19 pandemic.3 On 18 March 2020,
the Minister made regulations embodying a national public health response to the
pandemic (COVID -19 regulations). On 23 March 2020, the President announced a
national lockdown in South Africa, commencing on 26 March 2020. O n
25 March 2020, a day before the date announced by the President as the effective date

25 March 2020, a day before the date announced by the President as the effective date
of the lockdown, the Minister amended the COVID -19 regulations in order to bring
about a nationwide lockdown. The purpose of the lockdown was stated to b e in order

2 See [7]. The current Minister is Mr Velenkosini Hlabisa. The Minister at the time of the COVID-19 pandemic
was Dr Nkosazana Dlamini Zuma. For convenience, I shall thus, in discussing the powers of the M inister under
the DMA, refer to “she” / “her”.
3 Declaration of a National State of Disaster, GN 313 GG 43096, 15 March 2020.

TSHIQI J
4

to curb the spread of the virus, which was resulting in the hospitalisation and death of
many people in South Africa at an alarming rate.

[4] The lockdown regulations were extensive, and in some respects, placed
unprecedented restrictions on many constitutionally guaranteed fundamental rights and
freedoms. On 29 April 2020, the Minister published further COVID -19 regulations.
These regulations were subsequently amended in order to ease the lockdown restrictions
in line with alert levels forming pa rt of a risk -adjusted strategy. 4 Thereafter, the
Minister promulgated regulations as and when the need arose in accordance with the
alert levels.

[5] As part of the regulations issued and implemented by the Minister, schools and
care facilities were closed, people were prevented and prohibited from attending
gatherings and there was a limitation on the sale, dispensing and transportation of
liquor.5 Some of the consequences of the Minister’s response to the outbreak were that
there was a restriction on the movement of persons and goods; people were confined to
their places of residence; there was a prohibition of public transport unless restrictions
imposed by the regulations were complied with; 6 and the sale of cooked, hot food was
not allowed. 7 The Ministe r of Trade, Industry and Competition also implemented
further directions, after consultation with the Minister, and those directions restricted
the sale of certain items of clothing, footwear and bedding.8


4 The risk-adjusted strategy, in summary, created five alert levels. Alert level 1 imposed minimal restrictions and
would be implemented when the spread of the virus could be managed. Alert level 5, in contrast, was the most
severe and would be implemented when the virus was spreading rapidly, at a rate which the health care system
could not manage. The alert levels in between (levels 2, 3 and 4) imposed fewer restrictions than level 5 but more

restrictions than level 1.
5 Regulations Issued in Terms of Section 27(2) of the Disaster Management Act, 2002, GN 318 GG 43107,
18 March 2020.
6 Disaster Management Act, 2002: Amendment of Regulations Issued in Terms of Section 27(2), GN R.398
GG 43148, 25 March 2020.
7 Disaster Management Act, 2002: Amendment of Regulations Issued in Terms of Section 27(2), GN 471
GG 43240, 20 April 2020.
8 Directions Regarding the Sale of Clothing, Footwea r and Bedding During Alert Level 4 of the COVID -19
National State of Disaster, GN R.523 GG 43307, 12 May 2020.

TSHIQI J
5

[6] In the present matter, section 27 of the DMA is challenged because it permitted,
and still permits, the exercise of these powers by the Minister. The DA’s case is not
that executive measures should be subject to examination by Parliament before they
come into effect. Its case is that such measures should promptly be tabled in Parliament,
that Parliament should then be entitled to approve or disapprove of the measure s and,
in the case that it disapproves, the measures lapse from the date of such disapproval (but
not retroactively).

[7] Section 27 reads:

“Declaration of national state of disaster
(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, subjec t 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 disaster-stricken or threatened area if such action is necessary
for the preservation of life;

TSHIQI J
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(e) the regulation of traffic to, from or within the disaster -stricken or
threatened area;
(f) the regulation of the movement of persons and goods to, from or within
the disaster-stricken or threatened area;
(g) the control and occupancy of premises in the disaster -stricken 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 disaster-stricken 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 post -disaster 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;

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(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.”

Litigation history
DA’s initial application for direct access to this Court
[8] The DA initially sought direct access to this Court. Direct access was refused
on the basis that it was not in the interests of justice to hear the matter at that stage. The
application was therefore not dismissed on the merits.

High Court
[9] After the dismissal of the application for direct access in this Court, the DA
approached the High Court, Gauteng Division, Pretoria (High Court) on an urgent basis
to seek an order that section 27 of the DMA is unconstitutional and invalid. It also
sought an order remedying the constitutional invalidity by a reading-in. It proposed that
a provision, styled as a new section 27(4A), be read in immediately after section 27(4)
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.

TSHIQI J
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(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).”

[10] The matter was heard by a Full Court which produced a majority and a dissenting
judgment. Both judgments agreed that the application was urgent. The Full Court in
both judgments regarded the bases on which section 27 was challenged as that it—
(a) is an unconstitutional delegation of Parliament’s legislative powers to the
Executive and gives the Minister exceedingly broad powers to legislate
over almost every aspect of the lives and businesses of South Africans;
(b) permits the creation of a situation resembling a state of emergency, but
without the oversight role that section 37 of the Constitution requires for
Parliament in an actual state of emergency; and
(c) does not enable the National Assembly to sc rutinise and oversee
executive action as is required by sections 42(3) and 55(2) of the
Constitution.

[11] Regarding the first and second challenges, the majority (Musi JP with Windell J
concurring) held that these challenges were not “stridently argued” nor “ abandoned”.9
The majority, however, accepted that these two bases were decided by a Full Court of
the same division in Freedom Front Plus 10 and that there was no basis to hold that
Freedom Front Plus was wrongly decided. It therefore endorsed the following
reasoning from Freedom Front Plus:


9 Democratic Alliance v Minister of Co -operative Governance and Traditional Affairs , unreported judgment of

the High Court of South Africa, Gauteng Division, Pretoria, Case No 22311/2020 (24 March 2021) (High Court
judgment) at para 18.
10 Freedom Front Plus v President of the Republic of South Africa [2020] 3 All SA 762 (GP).

TSHIQI J
9

“The [Freedom Front Plus] made much of the fact that section 37 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
[Minister]. According to the [Freedom Front Plus], in this respect, the DMA ignores
the fundamental constitutional prescript that the will of the people should be respected.
The [Freedom Front Plus] 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 section 37. Where no such deviation is permitted, it is not
necessary to make s pecial provision for parliamentary oversight. That oversight is a
normal component of our constitutional framework:
(a) Section 42(3) of the Constitution stipulates that one of the roles of the
National Assembly is to scrutinise and oversee executive action.
(b) Section 55(2)(b)(i) tasks the National Assembly with providing
mechanisms to maintain oversight of, among others, national
executive authority.
(c) 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 [Speaker of the National Assembly] and [Chairperson
of the National Council of Provinces] 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

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 [Freedom Front Plus] 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.”11

[12] The majority then considered the third ground: that the section does not enable
the National Assembly to scrutinise and oversee executive action as is required by

11 High Court judgment above n 9 at para 19.

TSHIQI J
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sections 42(3) and 55(2) of the Constitution. In this regard, it rejected the argument by
the DA that section 27 of the DMA provides the Minister with unbridled powers which
render the section unconstitutional.12 The majority found that the Executive would need
wide powers in order to realise the purposes of the DMA.13 It held further that the DMA
contains sufficient restraints on the Minister’s power. 14 It also noted that the Minister
may not declare a national state of disaster on a whim, as certain objective requirements
must be present before the Minister does so:15
(a) There must be a disaster as defined in the DMA.16
(b) The National Disaster Management Centre (National Centre) must
classify the disaster as a national disaster before the Minister may declare
a national state of disaster.
(c) After the classification of a national disaster, the National Executive must
deal with it in terms of existing legislation and contingency arrangements.
(d) 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 17 warrant the declaration of a national state of
disaster.

12 Id at para 46.
13 Id at para 47.
14 Id at para 48.
15 Id at para 49.
16 Section 1 of the DMA defines “disaster” as—
“a progressive or sudden, widespread or localised, natural or human-caused 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.”
17 The words “special circumstances” are not defined in the DMA. However, the High Court judgment above n 9
said at para 54 that:

said at para 54 that:
“[Special] circumstances [are those] 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,

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(e) The Minister must consult another Cabinet Minister before making
regulations or issuing directions that have an impact on that colleague’s
portfolio.
(f) The Minister’s power to make regulations or issue directions or authorise
the issuing of directions may only be exercised in pursuance of the
positive purposes stated in section 27(3) of the DMA.

[13] The majority held that the DA was 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. However, so held the majority, those powers
only relate to COVID -19 matters, which are matters that demand a swift, integrated,
necessary and effective response.18

[14] The majority concluded that although the DMA gives the Minister wide powers,
the negative constraints, positive constraints, judicial review and parliamentary
oversight measures ensure that the Minister’s power s are sufficiently limited.
Section 27 of the DMA was therefore held to withstand constitutional muster. 19 The
dissenting judge (Matojane J) concluded that section 27 was unconstitutional. He said
that he would have suspended the declaration of invalidity for two years.

Supreme Court of Appeal
[15] The Supreme Court of Appeal was also split in its judgment and order, in this
case the split being four to one. It had to determine all three issues that came before the
High Court. Regarding the DA’s argument that se ction 27(2) granted the Minister
“nearly unfettered regulatory powers”, the majority (Molemela P, with Petse DP,
Mbatha JA and Molefe JA concurring) held that the argument had no merit. 20 In this

prepare for and respond to the disaster, and, in the aftermath, to reconstruct the dam age caused by the
disaster.”
18 Id at para 74.
19 Id at para 86.
20 Democratic Alliance v Minister of Co-operative Governance and Traditional Affairs [2024] ZASCA 65; 2024

(5) SA 463 (SCA); 2024 (9) BCLR 1189 (SCA) (SCA judgment) at para 30.

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regard, the majority relied on the findings of British American Tobacco,21 where it was
emphasised that all the powers specified in section 27(2) of the DMA must be exercised
only to the extent that it is necessary for the stated purposes of the DMA and not
according to the subjective beliefs of the Minister.22

[16] The majority held that section 27 of the DMA does not confer overly broad
delegated powers on the Minister for the following reasons:
(a) The general scheme of the DMA reveals a requirement for the Min ister
to constantly engage with several role -players in her decision-making
which indicates that her powers are part of a broader collaborative
venture.
(b) The Minister can only exercise her powers once the disaster has been
classified as a national disaster by the head of the National Centre.
(c) The Minister may only declare a national state of disaster by notice in the
Gazette if “existing legislation and contingency arrangements do not
adequately provide for the National Executive to deal effectively with the
disaster” or if there are other special circumstanc es that warrant such
declaration.23
(d) The DMA’s stated purpose is to implement urgent measures to address
the disaster. Parliament’s slow procedures would therefore obstruct the
achievement of this goal.
(e) The Minister must consult another Cabinet Minister before making
regulations or issuing directions that have an impact on that colleague’s
portfolio.
(f) The declaration of a national state of disaster that is permissible under
section 27 is for a relatively short period of time (three months). 24

21 Minister of Co-operative Governance and Traditional Affairs v British American Tobacco South Africa (Pty)
Ltd [2022] ZASCA 89; [2022] 3 All SA 332 (SCA).
22 SCA judgment above n 20 at para 29.
23 Section 27(1) of the DMA.
24 Section 27(5)(a) of the DMA.

TSHIQI J
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(g) The extension of the declaration of a national state of disaster is for one
month at a time.25 Such an extension would also have to be necessary in
the context of the DMA.
(h) All the powers specified in section 27(2) of the DMA must be exercised
only to the extent necessary for the stated purposes of the DMA and not
according to the subjective beliefs of the Minister.
(i) Section 59 of the DMA provides that the Minister may make regulations
if it is necessary to do so for the effective carrying out of the o bjects of
the DMA.
(j) Subsections 27(2) and (3) do not assign to the Minister the power to pass,
amend or repeal an Act of Parliament.

[17] Accordingly, the majority held that on these 10 factors, section 27 of the DMA
does not constitute a delegation of plenary delegated powers.

[18] The majority considered the argument by the DA that section 27 of the DMA
brings about a de facto (in fact) state of emergency. It held that such an argument was
based on a misconception, because a state of emergency does not permit a blanket
suspension of the constitutional order.26

[19] The majority next considered the question whether section 27 of the DMA
permits the Executive to exercise powers without parliamentary oversight. The
majority held that the DA failed to provide evidence to support its assertion that the
mechanisms adopted by Parliament during the national state of disaster to hold the
Executive accountable were inadequate. 27 Regarding the argument by the DA that the
parliamentary committees “have no teeth”, the majority held that the DA failed to take
into account various provisions of the Constitution that serve to ensure that Parliament’s

25 Section 27(5)(c) of the DMA.
26 SCA judgment above n 20 at para 60.
27 Id at para 76.

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oversight role is maintained. 28 The DA was further held to have failed to identify any
shortcomings in Parliament’s Oversight and Accountability Model (Model),29 which is
a document that came about after the recommendations of Parliament’s task team
comprising members of both Houses of Parliament.30

[20] The majority considered that none of the provisions of the DMA “purport to bar
parliamentary supervision” and accordingly, the ordinary parliamentary oversight
mechanisms remain intact and the exercise of powers by the Executive in terms of the
DMA remains subject to this.31 The Model, according to the majority, provides an array
of remedies d esigned to ensure full accountability, including summoning members
before the Portfolio Committees and disciplinary steps which may be taken against
errant members.32 The majority reasoned that “ [a]ggrieved parties who choose not to
invoke the available remedies cannot blame the DMA for their failure to do so”.33 The
majority relied on this Court’s judgment of One Movement South Africa ,34 which
“acknowledged that section 102 of the Constitution makes provision for Members of
Parliament to address Executive m embers’ remissness in their execution of their
constitutional mandate”.35

[21] The majority held that the argument by the DA, that the constitutional validity
of section 27(2) is an objective question and that the engagement between the Executive
and Parliament does not mean that Parliament has put in place effective mechanisms to
maintain oversight and accountability, simply failed to take into account that context is

28 Id at paras 89-90.
29 Parliament of the Republic of South Africa “Oversight and Accountability Model” (March 2009).
30 SCA judgment n 20 at para 80.
31 Id at para 81.
32 Id at para 82.
33 Id.
34 One Movement South Africa NPC v President of the Republic of South Africa [2023] ZACC 42; 2024 (2) SA
148 (CC); 2024 (3) BCLR 364 (CC) at para 37.

148 (CC); 2024 (3) BCLR 364 (CC) at para 37.
35 SCA judgment above n 20 at para 92.

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an important part of the unitary interpretive exercise. 36 It further reasoned, in view of
all of the parliamentary mechanisms for oversight and supervision, as well as the
safeguards for public participation that are built in as constitutional imperatives, it was
a classic example of putting form over substance to insist that these mechanisms would
only be effective if they were expressly included in the DMA. 37

[22] The majority concluded that—

“the Minister’s exercise of her regulation-making powers envisaged in the DMA in no
way violates or erodes the constitutional imperatives of supervision and accountability
prescribed in sections 42(3) and 55(2)(b)(i) of the Constitution, as the Executive
remains accountable to Parliament even during a state of disaster ; the Oversight and
Accountability Model does not state otherwise.”38

[23] The majority concluded that section 27 of the DMA passes constitutional muster
and the appeal was dismissed with no order as to costs. Makgoka JA, in the dissent,
would have upheld the appeal and replaced the Full Court’s order with one substantially
along the lines claimed by the DA.

This Court
Jurisdiction and leave to appeal
[24] The issue in this application concerns the constitutionality of section 27 of the
DMA. Section 167(3)(b)(i) of the Constitution provides this Court with the power to
decide constitutional matters. This Court therefore has the requisite jurisdiction.


36 Id at para 85.
37 Id at para 91.
38 Id at para 86.

TSHIQI J
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Is the matter moot?
[25] The DA launched this application on an urgent basis in the High Court during
the peak of the COVID-19 pandemic, which raises the question whether the matter can
be considered moot, seeing that the COVID-19 pandemic has abated.

[26] The national state of disaster was lifted almost two years after the matter was
first heard. However, the DMA is legislation that caters for unexpected events that may
result in the restriction of fundamental righ ts. It is not wise to assume that another
disaster of the magnitude of COVID -19 is unlikely to occur and it is not helpful to
speculate on the nature of a possible disaster. A prudent approach is to ensure that there
is certainty in the law, in the event that another disaster eventuates. Furthermore, this
Court has repeatedly held that mootness is not an absolute bar to the justiciability of an
issue and it is in the Court’s discretion to entertain even admittedly moot issues. 39 It is
thus in the interes ts of justice to consider the application in order to determine the
constitutionality of the provision.

[27] As was the case in the High Court and the Supreme Court of Appeal, the DA
continues to challenge the constitutionality of section 27 of the DMA on the following
three bases:
(a) 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
during a national state of disaster.
(b) It permits the creation of circumstances resembling a state of emergency,
but without an empowering provision for the oversight role that section 37
of the Constitution requires for Parliament in an actual state of
emergency.

39 Police and Prisons Civil Rights Union v South African Correctional Services Workers’ Union [2018] ZACC

24; 2018 (11) BCLR 1411 (CC); 2019 (1) SA 73 (CC) at para 44; Ruta v Minister of Home Affairs [2018] ZACC
52; 2019 (2) SA 329 (CC); 201 9 (3) BCLR 383 (CC) at para 8; and President of the Republic of South Africa v
Democratic Alliance [2019] ZACC 35; 2019 (11) BCLR 1403 (CC); 2020 (1) SA 428 (CC) at para 17.

TSHIQI J
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(c) It does not enable the National Assembly to scrutinise and oversee
executive action as is required by sections 42(3) and 55(2) of the
Constitution. It is accepted that there are several measures that provide
for oversight and scrutiny by Parliament, but it is argued that these are not
adequate or effective.

[28] The DA seeks to set aside the order of the Supreme Court of Appeal and replace
it with an order declaring section 27 inconsistent with the Constitution. It also seeks an
order for a temporary reading-in to remedy the unconstitutionality by granting the
National Assembly the power to , among others, “veto” by resolution and , when
appropriate, regulate extensions of such regulations. Additionally, it seeks an order for
the National Assembly to exercise such powers on the directives made by the Minister
during a national state of disaster under section 27 of the DMA. I find it helpful in this
judgment to start with the second attack, and thereafter deal with the first and third
attacks, as there is a lot of overlap between the first and third grounds and some of the
submissions and reasoning apply to both.

Does section 27 of the DMA permit the creation of a de facto state of emergency?
DA’s submissions
[29] The DA argues that the powers the Minister is able to exercise under section 27
are akin to those powers conferred in a state of emergency, as the Minister has the power
to suspend and limit rights. This permits an unconstitutionally simulated state of
emergency due to the suspension of the ordinary legal order.

[30] The DA highlights that the restrictions imposed on people in South Africa during
the COVID -19 pandemic resulted in confinement to their homes; businesses being
precluded from operating (especially bottle stores); gatherings being prohibited;
curfews being imposed ; and thousands of arrests. The DA argues that through
section 27 of the DMA, the Minister is allowed to issue regulations that lead to a

section 27 of the DMA, the Minister is allowed to issue regulations that lead to a
widespread suspension of the ordinary legal order.

TSHIQI J
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[31] The DA contends that despite the similarities between the DMA and the State of
Emergency Act,40 the DMA lacks the safeguards imposed in section 37(2)(b) of the
Constitution, enabling the National Assembly to have the final decision during a state
of emergency. This section provides:

“(2) A declaration of a state of emergency, and any legislation enacted or other
action taken in consequence of that declaration, may be effective only—
. . .
(b) for no more than 21 days from the date of the declaration, unless the
National Assembly resolves to extend the declaration. The Assembly
may extend a declaration of a state of emergency for no more than
three months at a time. The first extension of the state of emergency
must be by a resolution adopted with a supporting vote of a majority
of the members of the Assembly . Any subsequent extension must be
by a resolution adopted with a supporting vote of at least 60 per cent
of the members of the Assembly. A resolution in terms of this
paragraph may be adopted only following a public debate in the
Assembly.” (Emphasis added.)

[32] The italicised portions show, argues the DA, that the National Assembly has the
power to make the final decision in a state of emergency, whereas section 27 does not
confer to it such a power during a national state of disaster . The DA also refers to
section 3 of the State of Emergency Act, which gives effect to section 37(2)(b) of the
Constitution. It is desirable to quote the whole of sections 3 and 4 of the State of
Emergency Act, particularly since the reading -in for which the DA argues is plainly
modelled on these provisions:

“3. Parliamentary supervision
(1) A copy of any proclamation declaring a state of emergency and of any
regulation, order, rule or bylaw made in pursuance of any such

40 64 of 1997.

TSHIQI J
19

declaration shall be laid upon the Table in Parliament by the President
as soon as possible after the publication thereof.
(2) In addition to the powers conferred upon the National Assembly by
section 37(2)(b) of the Constitution . . . , the National Assembly may—
(a) disapprove of any su ch regulation, order, rule or bylaw or of
any provision thereof; or
(b) make any recommendation to the President in connection with
any such proclamation, regulation, order, rule, bylaw or
provision.
4. Lapsing of emergency regulations
(1) Any regulation, order, rule or bylaw made in pursuance of the
declaration of a particular state of emergency, or any provision thereof,
shall cease to be of force and effect—
(a) as from the date on which the proclamation declaring that state
of emergency is withdrawn by the President under
section 1(3);
(b) as from the date on which the National Assembly—
(i) resolves under section 37(2)(b) of the Constitution
. . . not to extend the declaration of that state of
emergency; or
(ii) resolves under section 3(2)(a) to disappr ove of such
regulation, order, rule, bylaw or provision, to the
extent to which it is so disapproved; or
(c) as from the date on which the declaration of that state of
emergency lapses as contemplated in the said section 37(2)(b),
whichever is the earlier date.
(2) The provisions of subsection (1) shall not derogate from the validity
of anything done in terms of any such regulation, order, rule, bylaw or
provision 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
regulation, order, rule, bylaw or provision.”

TSHIQI J
20

[33] The DA argues that for the DMA to be consistent with the Constitution, it should
contain powers sim ilar to those conferred by section 3 of the State of Emergency Act
and with the effects stated in section 4.

[34] The DA concedes that a state of emergency and a national state of disaster clearly
have two different thresholds. However, the DA’s argument is t hat section 27 of the
DMA can achieve a similar outcome to that of a state of emergency. This is because,
as the DA argues, during a national state of disaster, certain rights are suspended and
therefore violated for the period of the disaster.

Minister and President’s submissions
[35] The Minister and the President contend that there are fundamental differences
between a state of emergency under section 37 of the Constitution and a national state
of disaster under the DMA. First, there is a higher threshold in the case of a state of
emergency than in a national state of disaster. A state of emergency can only be
declared when the life of the nation is threatened due to a form of public emergency and
if such a declaration is necessary to restore peace and ord er.41 This is clearly a more
onerous threshold to meet compared to a national state of disaster which may be
declared if there is no existing legislation or contingency arrangement to effectively
deal with the disaster or due to other special circumstances . Second, so argues the
Minister and the President, the declaration of a state of emergency permits the
assignment of plenary legislative powers to the Executive whereas a national state of
disaster does not. Third, section 37(4) of the Constitution expressly permits emergency
legislation that derogates from the Bill of Rights, if strictly required by the emergency,
whereas there is no similar provision in the DMA.

[36] The Minister and the President argue that a national state of disaster merely
permits the delegation of subordinate legislative powers to the Executive whereas a state

permits the delegation of subordinate legislative powers to the Executive whereas a state

41 Section 37(1) of the Constitution.

TSHIQI J
21

of emergency permits the Executive to cut across all existing laws and the Bill of Rights.
The two sets of rules are therefore not comparable, it is argued.

Parliament’s submissions
[37] Similar to the Minister, Parliament submits that a national state of disaster is not
a de facto state of emergency and reiterates that the two are materially different.
Parliament submits that a national state of disaster does not suspend the constitutional
order, considering that the constitutional order remains protected and operational during
a national state of disaster in the sense that the exercise of the powers under the DMA
may be taken on review.

[38] Parliament distinguishes between a national state of disaster and a state of
emergency by arguing that a state of emergency contemplates somethin g more severe
in magnitude than a national state of disaster. It is further submitted, save for those
fundamental rights rendered non -derogable by virtue of section 37(5)(c) of the
Constitution,42 a derogation from the fundamental rights in the Bill of Rig hts during a
state of emergency would not be justiciable in a court of law. Due to this, so argues
Parliament, the Legislature saw it fit to incorporate the safeguards in sections 3 and 4
of the State of Emergency Act and this does not exist on the reason ing that a national
state of disaster suspends or dilutes the constitutional order. As such, Parliament
submits that the fact that the powers conferred by the DMA may result in a breach of
rights, even as a result of abuse, is not a basis to invalidate th e legislation as
unconstitutional.


42 Section 37(5)(c) provides that no Act of Parliament that authorises a declaration of a state of emergency, and
no legislation enacted or other action taken in consequence of a declaration, may permit or authorise “any
derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated

opposite that section in column 3 of the Table”. The sections listed in the Table are sections 9, 10, 11, 12, 13, 28
and 35 of the Bill of Rights. In some cases, these rights are non -derogable in their entirety (sections 10 and 11).
In the other cases, the non-derogation is partial.

TSHIQI J
22

Analysis
[39] At the outset, it is important to state that a national state of disaster is distinct
from a state of emergency as they are regulated by different sets of legislation, and it is
envisaged that they are utilised under different circumstances. But, a state of emergency
and a national state of disaster are simila r, to the extent that each encroaches on some
of the basic fundamental rights, specifically those powers in subsections 27(2)(d) to (k)
of the DMA.

[40] The impact of the regulations imposed during a national state of disaster, and the
effects they have on the rights in the Bill of Rights, will depend on the nature of the
disaster they seek to address. Some disasters have little impact on the Bill of Rights
and may not create extraordinary circumstances. For instance, the regulations
promulgated pursuant to the electricity-related state of disaster did not affect rights such
as the right to freedom of movement and housing. What was impacted was the right to
obtain and use electricity at certain times. By contrast, the impact of other national
states of disas ter such as the COVID -19 pandemic was far -reaching. It affected the
rights to freedom of movement , housing and freedom of trade, occupation and
profession. Therefore, a national state of disaster and a state of emergency are not the
same but, depending on the severity of the disaster, may have similar effects on some
of the rights in the Bill of Rights. It is unnecessary, and not possible, to conclude
whether a state of emergency is more invasive than a national state of disaster since it
will depend on the event in each scenario.

[41] Section 27(2) gives the Minister the power to make regulations or to authorise
the issuing of directions on the following matters:
(a) subsection (d): the evacuation to temporary shelters of all or part of the
population from the disaster-stricken or threatened area if such action is
necessary for the preservation of life;

necessary for the preservation of life;
(b) subsection (e): the regulation of traffic to, from or within the
disaster-stricken or threatened area;

TSHIQI J
23

(c) subsection (f): the regulation of the movement of persons and goods to,
from or within the disaster-stricken or threatened area;
(d) subsection (g): the control and occupancy of premises in the
disaster-stricken or threatened area;
(e) subsection (h): the provision, control or use of temporary emergenc y
accommodation;
(f) subsection (i): the suspension or limiting of the sale, dispensing or
transportation of alcoholic beverages in the disaster-stricken or threatened
area;
(g) subsection (j): the maintenance or installation of temporary lines of
communication to, from or within the disaster area; and
(h) subsection (k): the dissemination of information required for dealing with
the disaster.

[42] These powers undoubtedly have an impact on several provisions of the
Bill of Rights. For instance, subsections 27(2)(d), (g) and (h) of the DMA may have an
impact on section 26(3) of the Constitution, which states that no one may be evicted
from their home or have their home demolished without an order of court made after
considering all the relevant circu mstances. S ubsections 27(2)(e) and (f) of the DMA
may have an impact on section 21(3) of the Constitution, which states that every citizen
has the right to enter, to remain in and to reside anywhere in the Republic.

[43] If there is a challenge on the basis of such a violation of rights, that will have to
be justified in terms of section 36 of the Constitution. In the exercise of a section 36
limitation analysis, the courts will have to consider the ancillary rights which are being
protected. For example, in a flood, evacuation provisions might impact the right to
housing but they also protect the right to life. Section 36 provides:

“(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limita tion is reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom,

open and democratic society based on human dignity, equality and freedom,
taking into account all relevant factors including—

TSHIQI J
24

(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.”

None of these factors are individually decisive. Nor are they exhaustive of the relevant
factors to be considered. It is trite that such a consideration is done by a court exercising
its review powers.

[44] Section 37(3) of the Constitution permits judicial intervention on specified
grounds. It provides that a competent court may decide on the validity of a declaration
of a stat e of emergency, any extension thereof and any legislation enacted or action
taken in consequence of the declaration. In terms of section 37(4) of the Constitution,
there may be a derogation from fundamental rights, but such derogation has to be
“strictly required by the emergency”. 43 So, if a litigant challenges an emergency law
for derogating from fundamental rights, the government will have the burden of proving
that the derogation is “strictly required by the emergency”.

[45] Although there is a legislative distinction between a state of emergency and a
national state of disaster, section 27 of the DMA has permitted the creation of
circumstances where the limitation of rights entrenched in the Bill of Rights may have
a far-reaching impact which leads to a co nclusion that the effects of a national state of
disaster, although not the same, may be similar to those of a state of emergency.

[46] The restriction of freedom of movement and assembly during the lockdown
period has been described as being similar to that adopted by the apartheid government
in the 1980s and 90s. To the exclusion of funerals, there was almost a total limitation
on the right of assembly and freedom of movement during the lockdown. The curfews

43 Section 37(4)(a) of the Constitution.

TSHIQI J
25

imposed during the level 4 lockdown, in particula r, resembled the curfews imposed
during a state of emergency under apartheid rule.44

[47] Similarly, in an effort to address overcrowding in a number of informal
settlements across the country, thousands of residents were relocated from their homes
in an attemp t to slow down the spread of the virus. 45 Some of the residents opposed
these relocations on the basis that they were reminiscent of Cape Town’s District Six
forced removals of over 60 000 residents carried out by the apartheid government in
1968, after the declaration of District Six as a whites-only area.46

[48] Sadly, the restrictions of movement during the lockdown had harsher effects on
the poor, who were forced to remain cramped up in their small homes, making it
difficult to comply with the regulations. Similar to a state of emergency during the
apartheid era, the South African National Defence Force was deployed to support the
South African Police Services to monitor and enforce restrictions during the lockdown.
The consequence for non -compliance was a criminal sanction, which is once more a
similar consequence to that adopted during a state of emergency. 47

[49] The Chief Executive Officer of the South African Human Rights Commission
described the lockdown restrictions as akin to those under a state of emerge ncy and
remarked on the reluctance to declare it a state of emergency, considering the country’s
association of a state of emergency with the apartheid regime.48

[50] An illustration that shows the extent of the limitation of rights during the
COVID-19 pandemic can be made by referring to what the Supreme Court of Appeal

44 Nchodu The Constitutionality of the Disaster Management Act and the Covid -19 Regulations Enacted
Thereunder: Does This Regulatory Regime Contravene the Right to Just Administrative Action? (LLM thesis,
University of Cape Town, 2022) at 38.

University of Cape Town, 2022) at 38.
45 Staunton et al “Between a Rock and a Hard Place: COVID-19 and South Africa’s Response” (2020) 7 Journal
of Law and the Biosciences 1 at 6.
46 Id.
47 Nchodu above n 44 at 39.
48 Id at 35.

TSHIQI J
26

said in Esau49 concerning the regulations 50 made by the Minister in the exercise of her
broad range of powers. Concerning the exercise regulation, 51 which permitted people
to walk, run or cycle between the hours of 06h00 to 09h00 within five kilometres of
their premises, the Court said:

“I find that there is no rational explanation to justify them. The result is that no rational
connection has been established between the restrictions and their ostensible purpose.
They are also disproportional because their necessity has not been demonstrated, and
nor is it obvious or explained.”52 (Footnote omitted.)

[51] Regarding the exclusion of hot cooked food from the list of essential goods that
could be purchased,53 the Court said:

“The COGTA Minister’s justification for this prohibition was that it was aimed at
preventing people in shops from standing at a counter waiting for the preparation of a
hot meal. It seems to me that this explanation is not objectively rational. The
prohibition, furthermore, is not proportional to the mischief that the COGTA Minister
sought to avoid. It is arbitrary in the extreme to draw a distinction, to put it at its
crudest, between a hot piece of chicken and a cold piece of chicken. It is premised on
the idea that hot food will be prepared while customers wait, whereas often hot food
has been pre -prepared and all that is required is for the food to be handed to the
customer, in the same way that cold food would be.”54

[52] The Constitution provides for the involvement of the National Assembly during
a state of emergency. 55 Section 3 of the State of Emergency Act gives effect to
section 37(2)(b) of the Constitution and provides that the regulations shall be tabled

49 Esau v Minister of Co -operative Governance and Traditional Affairs [2021] ZASCA 9; [2021] 2 All SA 357
(SCA); 2021 (3) SA 593 (SCA).

(SCA); 2021 (3) SA 593 (SCA).
50 Disaster Management Act, 2002: Regulations Issued in Terms of Section 27(2) of the Disaster Management
Act, 2002, GN 480 GG 43258, 29 April 2020 (Regulations).
51 Id at regulation 16(2)(f).
52 Esau above n 49 at para 146.
53 Regulations above n 50 at items 1 and 2 of Part E of Table 1, read with regulation 28(3).
54 Esau above n 49 at para 152.
55 Section 37(2)(b) of the Constitution.

TSHIQI J
27

before Parliament as soon as possible after promulgation. The National Assembly may
disapprove of any such proclamation, regulation, order, rule or by -law or of any
provision thereof or make any recommendation to the President in connection with any
such proclamatio n, regulation, order, rule, by -law or provision. If the
National Assembly disapproves of the measure in question, it lapses from the date of
such disapproval, without retro actively invalidating things that happened prior to the
date of disapproval. This ensures that the Executive can act swiftly to deal with an
emergency and that there is legal certainty about the regime pending the
National Assembly’s decision, but that the National Assembly can step in and
prospectively terminate the measure if it disapproves thereof.

[53] The Constitution also grants the powers to a court, during a state of emergency,
to decide on the validity of the declaration, its extension and any legislation enacted in
consequence of such a state of emergency. As stated, although ther e is no specific
provision that gives a court such powers in the DMA, a limitation of the rights
entrenched in the Bill of Rights is tested through review proceedings in a court of law.

[54] It is important to note that although the threshold s for a state of e mergency and
national state of disaster are different, there is a similarity in that section 27(3) of the
DMA states that the powers conferred on the Minister may be exercised only to the
extent that it is necessary for the purposes of dealing with the disaster. Section 37(4) of
the Constitution states that any legislation enacted as a result of a state of emergency
may derogate from the Bill of Rights only to the extent that the derogation is strictly
required by the emergency. In both of these scenarios, there may be a derogation from
fundamental rights insofar as it is necessary (in a national state of disaster) or as strictly

fundamental rights insofar as it is necessary (in a national state of disaster) or as strictly
required (in a state of emergency). It would be on those bases that regulations would
be challenged. I will address later the fact that there is no specific mention of the powers
of the National Assembly to have the final decision herein, when I consider whether
this omission of a specific reference means that the National Assembly cannot override
the Minister if it disagrees with the regulations.

TSHIQI J
28

[55] The application by the DA is premised on the fact that there is no similar
provision in the DMA, yet the DMA permits similar breaches of constitutional rights
albeit, arguably, at a lower scale. I have already acknowledged that the thr eshold in a
national state of disaster is, or may be, lower than that of a state of emergency,
depending on the nature of the disaster. Although the thresholds may be different, what
is of importance is that the impact on fundamental rights is similar, in the sense that
section 27 of the DMA has the potential, like the State of Emergency Act, to permit a
limitation of the basic fundamental rights entrenched in the Bill of Rights.

[56] Perhaps the lacuna in the DMA was as a consequence of the fact that the
Legislature, when enacting the DMA, did not anticipate a national state of disaster of
the magnitude of COVID-19. This thinking is more attractive when one compares the
recent electricity -related state of disaster in South Africa with the national state of
disaster during the COVID -19 pandemic. 56 The COVID-19 national state of disaster
was also of a higher magnitude and had dire consequences compared to other disasters
such as the riots that occurred in KwaZulu -Natal in July 2021. The other common
disasters in several countries (including South Africa) are often climatic in nature,
namely, flooding and wildfires. 57 This argument, however, was not advanced by the
respondents and therefore I leave it at that.

[57] What the COVID-19 pandemic and resultant national state of disaster reveal is
that there may be very severe disasters which, in the opinion of the Executive, call for
extreme measures and significant limitations on fundamental rights. The DMA, as it
stands, permits such far-reaching measures without reserving to the National Assembly
or Parliament a right to override regulations promulgated by the Minister. I

56 The classification of a state of disaster due to the impact of the electricity supply was made on 9 February 2023.
See Classification o f National Disaster: Impact of Severe Electricity Supply Constraint, GN 48009 GG 3019,
9 February 2023.
57 See, for example, Classification of a National Disaster in Terms of Section 23 of the Disaster Management Act
(Act No. 57 of 2002): Impact of Severe W eather in the Country, GN 52015, GG 5813, 30 January 2025;
Classification of a National Disaster in Terms of Section 23 of the Disaster Management Act (Act No. 57 of 2002):
Impact of Floods Due to Inclement Weather, GN 48036, GG 3035, 13 February 2023; Declaration of a National
State of Disaster, GN 41493 GG 210, 13 March 2018.

TSHIQI J
29

acknowledge that there are various pieces of legislation which permit a delegation of
broad and exte nsive powers. However, the DMA is special legislation which is
implemented in extraordinary times when there is a sudden disruption to a community
or nation by, usually, an unexpected disaster. Quite similar to the safeguards required
in a state of emergency, it is appropriate to expect that such safeguards are needed in a
national state of disaster.

[58] Although I have dealt with the similarities and differences between a national
state of disaster and a state of emergency, I hold the view that it does not matter that a
national state of disaster in terms of the DMA may seem less draconian than a state of
emergency in terms of section 37 of the Constitution. As I have said, the focus in both
instances should be on the safeguards to deal with the effects on the fundamental rights
limited by either scenario. Accordingly, it is not my conclusion that the
unconstitutionality in the provision is as a result of a national state of disaster
constituting a de facto state of emergency, as submitted by the DA.

[59] The point, instead, is that the DMA does not have a specific provision providing
for approval or disapproval of regulations made during a national state of disaster by
the National Assembly in circumstances where the powers of the Minister may result in
a signi ficant intrusion on the constitutionally protected rights of the citizens of
South Africa.

Is there an impermissible delegation of legislative power to the Minister?
[60] Before I deal with whether this power for approval and disapproval should be
spelled out expressly in the DMA, it is necessary to deal with the DA’s submission that
the powers granted to the Executive constitute an impermissible delegation of
legislative powers because they are extremely broad and may potentially limit the basic
rights of South Africans due to the intrusive nature thereof. In the process of dealing

rights of South Africans due to the intrusive nature thereof. In the process of dealing
with this enquiry, I will consider whether there are any constraints or limitations to the
powers exercised by the Executive. I adopt this approach because it is not disputed that
the Minister has broad powers that are delegated to her during a national state of

TSHIQI J
30

disaster. The bone of contention is whether delegating such powers is constitutionally
impermissible because it breaches the doctrine of separation of powers.

[61] The DA argue s that this is the consequence when the Minister exercises such
powers, whilst the Minister and Parliament submit that the powers may be broad but
there are adequate limitations that are applicable to the Minister when she exercises
these powers. Parliament argues that such constraints immunise the relevant provisions
of the DMA. Because it is not disputed that the Minister has broad delegated powers,
the real question here is whether the limitations advanced by the respondents are
sufficient to restrain the Minister from usurping the powers of the National Assembly.

DA’s submissions
[62] The DA submits that section 27 has delegated Parliament’s legislative power to
the Executive but has not provided any appropriate mechanism for accountability to
Parliament. It argues that if there is a lack of accountability to Parliament, there is a
lack of accountability to the people of South Africa, who are represented by Parliament.

[63] The DA further submits that the powers conferred on the Minister in section 27
of the D MA fail to strike a proper constitutional balance between Parliament and the
Executive due to the vast powers afforded to the Executive. It argues that the vastness
of the powers delegated by section 27 and the unconstitutionality thereof are understood
when analysing two main principles:
(a) The ability of Parliament to delegate legislative powers is limited by,
amongst others, the principle of the separation of powers. 58 This is due
to the fact that Parliament is elected by the people and thus bears the
responsibility of making laws which contribute towards upholding

58 Counsel for the DA referred to In re Constitutionality of the Mpumalanga Petitions Bill, 2000 [2001] ZACC

10; 2001 (11) BCLR 1126 (CC); 2002 (1) SA 447 (CC) at para 19 which states that determining whether or not
delegated legislation has gone too far depends on context. See also Executive Council, Western Cape Legislature
v President of the Republic of South Africa [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC)
(Executive Council) which includes a list of factors at para 206, used to determine the extent to which Parliament
may delegate its law-making function.

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31

democracy. Delegating too much of its powers may lead to important
decisions being made without parliamentary scrutiny.
(b) There are the limitations placed by the Constitution in a state of
emergency. The DA submits that contrary to a national state of disaster
in section 27 of the DMA, a state of emergency in section 37 of the
Constitution has the necessary safeguards to allow the Executive to
respond to an emergency, which includes the declaration and continued
existence of any state of emergency, but that this is subject to
parliamentary control.

[64] Furthermore, the DA cites the following factors as proof th at the powers of the
Minister conferred by section 27(2) are broad and intrusive:
(a) The Minister’s powers as stipulated in paragraphs (a) to (m) of
section 27(2) apply to the whole country during a national state of
disaster.
(b) The power in paragraph ( n) is broadly worded because it enables the
Minister to take any other steps necessary to prevent the escalation of the
disaster.
(c) Although the section does not give the Minister the power to pass, amend
or repeal an Act of Parliament, the Minister is allowed to suspend or limit
the rights conferred in terms of other Acts of Parliament. She is thus
unrestrained by all other statutes apart from the DMA in making
section 27 regulations.
(d) Since section 27(4) provides that regulations made under section 27(2)
may include “regulations prescribing penalties for any contravention of
the regulations”, the Minister may make it a crime to contravene a
section 27 regulation.
(e) Lastly, whilst the power is delegated to the Minister, she is permitted to
sub-delegate the power to anyone else.

TSHIQI J
32

[65] The DA argues that for instance, during the COVID -19 lockdown, the Minister
enacted regulations that restricted many fundamental freedoms, some of which were
clouded with a good measure of irrationality, yet Parliament did not have residual power
to set these aside.

[66] The DA argues further that this unrestrained power extends to other Acts of
Parliament. For instance, the Minister in terms of section 27(2)(i) may suspend or limit
the sale, dispensing or transportation of alcoh olic beverages in the disaster -stricken or
threatened area. In doing so, she would be legislating in an arena regulated by the
Liquor Act59 and therefore within the portfolio of another Minister. To restate,
section 27(2) provides the Minister with powers to delegate to others the power to make
subordinate legislation under section 27(2) in the sense that she may, after consulting
with the responsible Cabinet member, make regulations , issue directions or authorise
the issue of directions. Section 27(4) provides the Minister with powers to make it a
crime to contravene section 27 regulations.

[67] The DA acknowledges that the Minister may act in good faith in exercising the
section 27(2) powers and that she, in fact, probably acted in good faith during the
COVID-19 pandemic. The DA submits, however, that the good faith of the Minister is
irrelevant when assessing the constitutionality of the provision of an Act. In this regard,
the DA refers to South African Association of Personal Injury Lawyers ,60 where it was
held:

“I have no doubt that in accepting the appointment the first respondent acted in what
he perceived to be the national interest. The fact, however, that all involved acted in
good faith and in what they perceived to be the interests of the country does not make
lawful, legislation or conduct that is inconsistent with the separation of powers required
by the Constitution.”61

59 59 of 2003.

by the Constitution.”61

59 59 of 2003.
60 South African Association of Personal Injury Lawyers v Heath [2000] ZACC 22; 2001 (1) BCLR 77 (CC); 2001
(1) SA 883 (CC).
61 Id at para 36.

TSHIQI J
33


[68] In response to the respondents’ contention that the Minister exercises the
delegated powers subject to the constraints contained in the DMA, the DA contends that
when considering whether the delegation of power is impermissible or not, one must
look at the sufficiency of the constraints. It submits that the constraints are insufficient.
It accepts that the Minister’s powers are constrained insofar as they relate to the
requirement that the Minister should consult with another Cabinet member prior to
making decisions or regulations. It is also prepared to accept that those constraints
include oversight and scrutiny by Parliament, including internal procedures within their
scope for the exercise of its constitutional duty in accordance with the Rules of the
National Assembly, and as informed by the Model. The criticism is the fact that in the
absence of an overriding power of control, such as exists in the case of a state of
emergency, it is the decision of the Minister, as a member of the Executive, that will
prevail, in the event of disagreement between the National Assembly and the Minister.

[69] The DA contends that we should look at the factors in Nu Africa62 to determine
whether a delegation constitutes an affront to the Constitution. The factors are: the
scope of the delegation; the subject matter to which it relates; the degree of delegation;
and the sufficiency of the constraints.63 It also emphasises that there is no justification
analysis in terms of section 36 of the Constitution when there is a breach of the
separation of powers.

[70] The DA accepts the respondents’ contention that the regulations can be
challenged through review in court, but argues that this should not be the only solution
as judicial review is a slow and expensive process. It argues that the weakness and
delays in this review process can be illustrated by the fact that the regulations to manage
the COVID-19 pandemic were made at the peak of the pandemic around 2020 and we

the COVID-19 pandemic were made at the peak of the pandemic around 2020 and we
are still dealing with a case challenging them five years later. Furthermore, the DA

62 NU Africa Duty Free Shops (Pty) Ltd v Minister of Finance [2023] ZACC 31; 2023 (12) BCLR 1419 (CC);
2024 (1) SA 567 (CC).
63 Id at para 95.

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34

contends that section 27 decisions will invariably be determined through rule 5364
applications, and that under Plascon-Evans,65 factual disputes will generally be decided
in favour of the Executive, 66 as a party bringing a challenge will inevitably be an
applicant in those proceedings.

Minister and President’s submissions
[71] The Minister and the President contend that the Minister’s powers are actually
far more restricted than the DA has argued. They submit that the power to determine
whether a national disaster has occurred is vested in the National Centre in terms of
subsections 23(1)(b), (6) and (7), and the decisions of the National Centre are beyond
the Minister’s control. Additionally, the Minister and the President submit that in terms
of section 26(2)(b), it is the National Executive that must deal with the national disaster,
and which is responsible for the management of the disaster. Therefore, the Minister is
accountable to the National Executive when exercising the conferred powers.

[72] The Minister and the President also submit that although the Minister may
augment existing laws after consulting t he responsible Cabinet member, and only if
necessary, the Minister cannot repeal or amend them. The Minister and the President
further submit that the Minister’s powers are not exempt from any limitation imposed
by the Constitution, and even if they satis fy the requirements for a limitation under
section 36 of the Constitution, the disaster regulations are still subject to judicial review
under the Promotion of Administrative Justice Act 67 (PAJA) considering that they
pertain to the exercise of public power.

[73] The Minister and the President further submit that there is a difference between
the delegation of subordinate legislative powers, which are subject to the enabling Acts

64 Uniform Rules of Court.

64 Uniform Rules of Court.
65 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] 2 All SA 366 (A);
1984 (3) SA 623.
66 Id at 634-5.
67 3 of 2000.

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35

of Parliament (as seen in this case), and the assignment of plenary legislative pow ers
which enable the holder to pass, amend and repeal Acts of Parliament, which the
Minister does not have the power to do in this instance.68

Parliament’s submissions
[74] Parliament contends that the majority in the High Court and the
Supreme Court of Appeal were correct in dismissing the DA’s contentions. It contends
that the DA’s reliance on Nu Africa to substantiate its argument that the Minister’s
regulation-making powers must be subject to the approval of Parliament is incorrect
since Nu Africa did not t urn on just one of several factors that determine whether the
delegations in issue are constitutionally compliant or not.

[75] Parliament refers to Van Rooyen69 to submit that this Court has made it clear that
legislation will not be considered invalid or unconstitutional just on the basis that the
powers conferred may be abused. 70 Furthermore, even if there is an abuse of power,
the remedy lies in judicial revie w or constitutional control and not the complete
abrogation of the legislation.

[76] Parliament submits that there is no impermissible delegation of legislative
powers as there are sufficient constraints in the DMA to render the delegated powers in
section 27 constitutionally permissible. In that regard, Parliament makes the following
points:
(a) The general scheme of the DMA reveals a requirement for the Minister
to constantly engage with several role -players in her decision making.
The exercise of the powers is clearly collaborative. The discretion of the
Minister is sufficiently guided by other provisions of the DMA.

68 An example given in the Minister and the President’s submissions is that the Minister limiting when pubs close
may limit rights but does not amend or repeal any Act of Parliament.
69 Van Rooyen v S [2002] ZACC 8; 2002 (5) SA 246 (CC); 2002 (8) BCLR 810 (CC).
70 See id at paras 37-8.

TSHIQI J
36

(b) The Minister can only exercise her powers once the disaster has been
classified as a national disaster by the head of the National Centre, whom
she has appointed.
(c) The Minister is not given carte blanche to declare a national state of
disaster. She can only do so if existing legislation and contingency
arrangements do not adequately provide for the National Executive to
deal effect ively with the disaster or if there are other special
circumstances that warrant such a declaration.
(d) The DMA’s stated purpose is to implement urgent measures to address
the disaster, which requires rapid and effective interventions.
(e) The Minister must consult Cabinet colleagues before making regulations
or issuing directions that impact another Cabinet member’s portfolio.
(f) The declaration of a national state of disaster under section 27 is for a
relatively short period of time.
(g) The extension of the declaration of a national state of disaster is for one
month at a time. It must be for the same purpose as the initial declaration
and meet the “necessary” test.
(h) All the powers specified in section 27(2), must be exercised only to the
extent nec essary for the stated purposes of the Act and not for the
subjective beliefs of the Minister.
(i) Section 59 of the DMA provides that the Minister may make regulations
on matters that are necessary to prescribe for the effective carrying out of
the objects of the DMA. Those regulations must not be inconsistent with
the provisions of the DMA.
(j) Subsections 27(2) and (3) do not assign plenary powers to the Minister to
pass, amend or repeal any legislation.

[77] Parliament submits that it is evident from the litigation challenging the Minister’s
decision during the COVID-19 pandemic that those who were affected by the exercise
of the power knew which avenues to use in order to seek relief.

TSHIQI J
37

[78] It further argues that the DMA expressly provides for rapid and effectiv e
interventions to deal with the disaster and that the Legislature’s procedures would
hinder the swiftness required by the Act.

Is there a breach of the doctrine of separation of powers as argued by the
DA?
[79] It is not disputed that the powers conferred on the Minister are very broad and
that some of those powers intrude into the parameters of the powers of the Legislature
and other members of the Executive. It is also accepted, as argued by the respondents,
that section 27 of the DMA does enable the National Assembly to scrutinise and oversee
executive action as required by sections 42(3) and 55(2) of the Constitution, and that
there are limitations or constraints available in the DMA and the Model. It has not been
suggested by the respondents that it would be consistent with the doctrine of separation
of powers to assign such potentially drastic law-making powers to the Executive in the
ordinary course. The argument is that such assignment is justified by the need for swift
action in the face of disasters.

[80] The real question, then, is whether the power to oversee and scrutinise the powers
of the Minister can be said to amount to the necessary constraints to provide for effective
or adequate oversight mechanisms for the wide-ranging powers granted to the Minister
in section 27. The criticism is that all these several measures of oversight are such that
the National Assembly, as a representative of the people in the country, is not afforded
the right to have a say on whether to approve or disapprove regulati ons made during a
national state of disaster. The starting point for this enquiry is to have a closer look at
the present mechanisms.

TSHIQI J
38

[81] Sections 42(3) and 55(2) of the Constitution oblige the National Assembly to
scrutinise and maintain oversight of executive action as reiterated in EFF I71 and II.72
Section 92(3) provides that members of the Cabinet must provide Parliament with full
and regular reports concerning matters under their control. The criticism by the DA is
that although the Minister submits a yearly report to Parliament on the activities of the
National Centre,73 given the breadth of the powers provided by section 27, the reporting
obligation is insufficient. The DA submits that section 27 would pass the threshold for
constitutional validity if it explicitly required the National Assembly to supervise,
approve and disapprove the Executive’s decisions, regulations and directions issued in
terms of section 27(2). I am attracted to this argument.

[82] I am also willing to accept that this Court has held that the Constitution leaves it
up to the National Assembly to propose its own mechanisms on the oversight of the
Executive. I consid er this further below. The oversight mechanisms that the
National Assembly exercises are stipulated in the following legislative provisions:
(a) Section 42(3) of the Constitution imposes the National Assembly’s
oversight duty and section 55(2) gives content to the duty of oversight.
(b) Section 56 of the Constitution vests wide powers in the
National Assembly and its committees to call people to account.
(c) Subsections 92(2) and (3) of the Constitution provide that members of the
Cabinet are accountable i ndividually and collectively to Parliament for
the exercise of their powers and functions, and members of the Cabinet
have a duty to provide Parliament with full and regular reports concerning
matters under their control.
(d) Section 102 of the Constitution allows the National Assembly to force the
entire Cabinet, including the President, to resign as a result of passing a
motion of no confidence.

motion of no confidence.

71 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) at paras 93 and 95.
72 Economic Freedom Fighters v Speaker of the National Assembly [2017] ZACC 47; 2018 (2) SA 571 (CC);
2018 (3) BCLR 259 (CC) at para 149.
73 Section 24(2) of the DMA.

TSHIQI J
39

(e) The National Assembly has established internal procedures for exercising
its constitutional duty of oversig ht. These are set out in the Rules of the
National Assembly, as informed by the Model, which entail overseeing
the effective management of government departments to ensure, amongst
other things, a better quality of life for all the people of South Africa.
(f) Section 13(b) read with section 17(1) of the Powers, Privileges and
Immunities of Parliament and Provincial Legislatures Act74 renders it
contempt of Parliament to defy Parliament.
(g) Section 57(1) of the Constitution makes provision for Parliament to
determine and control its processes. They form part of our overarching
constitutional order and do not need to be repeated in every statute in
order to be applicable to executive functions under that statute.
(h) Section 57(2) of the Constitution require s that Parliament’s rules and
orders make provision for the establishment, powers and functioning of
committees. Parliament has discretion to determine these with due regard
to representative and participatory democracy, accountability,
transparency and public involvement.
(i) Parliament has the Model in terms of which it conducts oversight of the
various organs of state, including members of the Executive, through
committees.

[83] Parliament has broad powers and obligations to exercise its supervisory powers.
Accordingly, there is no need for every Act of Parliament to stipulate those powers.
Parliament has demonstrated how it had been exercising oversight over the Executive
during the COVID-19 pandemic in respect of various Portfolio and Select Committees
vis-à-vis each Minister being accountable to those committees. In supporting its claim
for the oversight measures exercised by Parliament during the pandemic, Parliament,
before the High Court, submitted the following examples:

74 4 of 2004.

TSHIQI J
40

(a) Minister of Health/Natio nal Department of Health: The Minister of
Health held two briefings on 10 April 2020 and 27 April 2020 to provide
an update on COVID-19 related matters.
(b) Minister of COGTA: The Minister was requested by the Portfolio
Committee on COGTA to discuss the consequences of the regulations. A
meeting was subsequently held on 21 April 2020, and on 23 April 2020
the Minister provided a written response to the questions raised by the
Portfolio Committee on COGTA. The Minister was further requested to
answer quest ions regarding the stimulus package to municipalities on
23 April 2020. On 28 April 2020, the South African Local Government
Association provided a briefing to the same Portfolio Committee75 on the
consequences of COVID-19 response measures insofar as they pertained
to municipal governance.
(c) Minister of Human Settlements, Water and Sanitation: The Minister of
Human Settlements, Water and Sanitation briefed its Portfolio
Committee76 on the impact of COVID -19 on issues pertaining to water
access and supply on 21 April 2020.
(d) Minister of Higher Education, Science and Technology: On
21 April 2020, the Minister of Higher Education, Science and
Technology briefed its Portfolio Committee77 regarding the impact of the
COVID-19 pandemic on universities.
(e) Minister of Employment and Labour: The Minister of Employment and
Labour briefed its Portfolio Committee78 on 22 April 2020 regarding his
Department’s plans to process Unemployment Insurance Fund and
Compensation Fund claims, inspections conducted during the extended
lockdown period and details with respect to the different programs that

75Including the Select Committee on COGTA.
76 Including the Select Committee on COGTA, Water and Sanitation and Human Settlements.
77 Including the Select Committee on Education and Technology, Sport, Arts and Culture.

77 Including the Select Committee on Education and Technology, Sport, Arts and Culture.
78 Including the Select Committee on Trade and Industry, Economic Development, Small Business Development,
Tourism, Employment and Labour.

TSHIQI J
41

the Executive was implementing to assist the vulnerable during the
lockdown.
(f) Minister of Trade, Industry and Competition: On 1 May 2020, a briefing
to its Joint Portfolio and Select Committees was held by the Department
of Trade, Industry and Competition (DTIC) regarding the Government’s
response to the potential negative impact of COVID -19 on the economy
and the measures considered to mitigate against it. On 19 May 2020, the
Competition Commission briefed the Portfolio Committee on Trade and
Industry79 regarding the impact of COVID -19 on the economy. On the
same date, the National Consumer Commission also addr essed the same
Portfolio Committee on, amongst others, the complaints that it received
around excessive pricing. On 28 May 2020, the DTIC provided a report
to its Portfolio Committee on the technical infrastructure entities’
contributions to Government’s COVID-19 response. On 1 June 2020, the
International Trade Administration Commission of South Africa reported
to the Portfolio Committee 80 on its contribution to the Government’s
response to COVID-19.
(g) Minister of Defence and Military Veterans: On 22 April 2020, the
Minister of Defence and Military Veterans briefed the Joint Committee
on Defence on various matters such as the repatriation of South African
citizens from the Hubei Province and issues surro unding the deployment
of the South African National Defence Force in the combat of the spread
of COVID-19.
(h) Minister of Social Development: On 23 April 2020, the Minister of Social
Development briefed its Portfolio Committee81 on matters relating to the
Department’s performance in responding to the COVID -19 pandemic as
well as its financial report. In June 2020, the Department provided a

79 Including the Select Committee on Economic Development, Small Business Development, Tourism,
Employment and Labour.
80 Id.
81 Including the Select Committee on Health and Social Services.

TSHIQI J
42

presentation to its Portfolio Committee regarding the implementation of
social grants impacted by COVID-19.
(i) National Treasury and the South African Revenue Service: On
22 April 2020, the National Treasury and the South African Revenue
Service briefed the Portfolio and Select Committees on Finance, relating
to the 2020 Draft Disaster Management Tax Relief Bill and the 2020 Draft
Disaster Management Tax Relief Administration Bill.
(j) Minister of Home Affairs: On 28 April 2020, the Minister of Home
Affairs briefed its Portfolio Committee 82 on matters concerning the
movement of refugees from the Cape Town Central Business District and
an update on service provision during the COVID-19 lockdown.
(k) Department of Small Business Development: On 28 April 2020, the
Department of Small Business Development briefed its Portfolio
Committee83 on matters concerning interventions for small enterprises
impacted by the COVID-19 pandemic during the lockdown.
(l) Minister of Basic Education: On 29 April 2020, the Minister of Basic
Education provided a briefing to its Portfolio Committee84 regarding the
impact and status of schooling during the COVID-19 lockdown.
(m) Minister of Police: On 29 April 2020, the Minister of Police briefed its
Portfolio Committee 85 on the report prepared by the Minister of Police
and Independent Police Investigative Directorate on the state of disaster.
(n) Minister of Justice and Correctional Services: On 29 April 2020, the
Minister of Justice and Correctional Services briefed its Portfolio
Committee86 regarding measures taken by the Ministry of Justice and
Correctional Servi ces to deal with the COVID -19 pandemic. On
1 May 2020, the same Portfolio and Select Committees invited the

82 Including the Select Committee on Security and Justice.
83 Including the Select Committee on Trade and Industry, Economic Development, Small Business Development,
Tourism, Employment and Labour.

Tourism, Employment and Labour.
84 Including the Select Committee on Education and Technology, Sport, Arts and Culture.
85 Including the Select Committee on Security and Justice.
86 Id.

TSHIQI J
43

Minister to a virtual meeting. On 4 May 2020, a virtual meeting was held
to discuss concerns caused by the COVID-19 pandemic.
(o) Minister of Tran sport: On 30 April 2020, the Minister of Transport
briefed its Portfolio Committee 87 on matters concerning the
implementation of COVID -19 regulations. A further presentation was
provided by the Department of Transport to its Portfolio Committee on
20 May 2020, regarding access to the relief fund.
(p) Minister of Public Works and Infrastructure: On 4 May 2020, the
Committees88 had a meeting where an array of topics regarding the
Executive’s response to COVID-19 was discussed.

[84] In addition to the above, Parlia ment provided numerous examples of Members
of Parliament who tabled questions to the different Cabinet members for written replies,
in accordance with the Rules of the National Assembly. Parliament submitted that the
examples it had provided indicate that there is sufficient parliamentary oversight over
the Executive during a national state of disaster. The DA, in response, contended that
whatever consultations and engagements took place in respect of the regulations were
not required by the DMA and, considering the breadth of the powers conferred to the
Minister, it is constitutionally required that the DMA provides Parliament with the
power to approve or disapprove the regulations enacted by the Minister.

[85] It should not, and cannot, be disputed that Parliament exercised its oversight and
accountability duties. That is not the question before this Court. The question is
whether the oversight measures mentioned by the respondents are sufficient in the
context of the DMA, in circumstances where the delegated powers relate to the exercise
of substantive legislative functions as opposed to the administrative implementation of
legislation. In considering the measures implemented by Parliament, I find that the

87 Including its Select Committee on Transport, Public Service and Administration, Public Works an d
Infrastructure.
88 The Portfolio Committee on Public Works and Infrastructure and the Select Committee on Transport, Public
Service and Administration, Public Works and Infrastructure.

TSHIQI J
44

oversight measures are not sufficient in this context. The various meetings and
engagements held by the respective Ministers to the parliamentary committees do not
indicate what would be the outcome if the parliamentary committees or Parliament in
its entirety disagreed with the Minister. In some instances, it is alleged that the Minister
did not respond to certain requests when asked to account for certain regulations. What
is clear is that oversight alone cannot be achieved by the utilisation of the mechanisms
in the Model. Oversight alone, when the subject-matter is as drastic as a national state
of disaster, requires further safeguards.

[86] It must also be highlighted that the DMA does not mandate the engagements to
be had by the Minister for Parliament’s approval. The actions o f the Minister during
the COVID-19 pandemic cannot be conclusive that the same engagements will follow
when the next national state of disaster occurs. It is appropriate for further measures to
be provided in the DMA, in order for it to be applicable when ever necessary during a
national state of disaster. As it stands, there is nothing permitting Parliament to have a
final say.

[87] An effective mechanism would include, at least:
(a) a duty by the relevant Minister to table any regulations made or directions
issued before the National Assembly promptly and as soon as possible
after the regulations and directions are made; and
(b) a power for the National Assembly to approve or disapprove any such
regulations or directions, as well as any extension of a nationa l state of
disaster.

[88] The importance of requiring a further, effective mechanism over delegated
legislation is not a foreign concept in our law. There is an obligation for the
National Assembly to hold members of the Executive accountable and to put effective
mechanisms in pla ce while maintaining oversight of their exercise of executive

TSHIQI J
45

authority.89 The main objective of tabling regulations in Parliament is to report to
Parliament which ensures accountability and openness of government. 90 The
Interpretation Act,91 which remains applicable pending post -Constitution amendment,
requires that a list of rules or regulations are submitted to Parliament within 14 days
after the publication of the rules or regulations in the Gazette.92 Although this is
intended to be the default position regarding tabling of rules and regulations, it is
recognised that legislation after 1994 requires that draft regulations or rules must first
be tabled in Parliament prior to publication in the Gazette.93 The Interpretation Act is
applicable to the interpr etation of every law in force at or after the commencement of
the Interpretation Act and to the interpretation of all by-laws, rules, regulations or orders
made under the authority of any such law, unless there is something in the language or
context of th at law, by -law, rule, regulation or order repugnant to such provisions or
unless the contrary intention appears therein. 94 If legislation does not express the
manner in which, and the extent to which, the regulations or rules should be tabled
before Parlia ment, the Interpretation Act finds application. This, at the very least,
indicates the intention for Parliament to be informed of the actions of the Executive.

[89] After the introduction of the constitutional dispensation, the Joint Rules
Committee created a Joint Subcommittee on Delegated Legislation (Subcommittee)
which had the purpose of investigating and providing recommendations for the
regulation of Parliament’s delegated legislation. 95 At the request of the
National Assembly, Professor Hugh Corder of the University of Cape Town compiled

89 United Democratic Movement v Speaker, National Assembly [2017] ZACC 21; 2017 (5) SA 300 (CC); 2017
(8) BCLR 1061 (CC) (United Democratic Movement) at para 40.

(8) BCLR 1061 (CC) (United Democratic Movement) at para 40.
90 Parliament of the Republic of South Africa “Guide to Tabling of Papers in Parliament” (July 2025) at para 2.8
(Guide to Tabling).
91 33 of 1957.
92 Id at section 17.
93 Guide to Tabling above n 90 at para 6.8.3.
94 Interpretation Act above n 91 at section 1.
95 Joint Rules of Parliament (1999) at section 86(a).

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46

a report (Corder Report) for the Subcommittee’s consideration which included the
following findings:
(a) The act of tabling delegated legislation in Parliament provides the basis
for any form of scrutiny and it should be a general obligation on the
lawmakers.96
(b) A further form of scrutiny by Parliament should occur but it should not
unduly hamper the lawful pursuits of the executive government. 97
(c) Parliament should retain the power to disapprove a part or the whole of
delegated legislation.98
(d) The scrutiny mechanisms imposed should not provide the final word on
questions of legal validity but rather raise concerns about possible
shortcomings in this respect.99

[90] In October 2002, the Subcommittee presented its Interim R eport to the Joint
Rules Committee where it proposed the creation of an interim mechanism for the
scrutiny of delegated legislation. In the report, the Subcommittee recommended that
legislation be passed which sets out the norms and standards on the manne r in which
delegated legislation will be tabled or approved and that the provisions of section 17 of
the Interpretation Act be reinforced, at least with respect to tabling. 100 Despite the
Corder Report and the recommendation made by the Subcommittee over 20 years ago,
the findings made in the reports have not been adopted into legislation.

[91] As will be evidenced below, the adoption of the findings in the Corder Report
are at the discretion of Parliament. However, the unconstitutionality in the failure to
ascribe powers of approval or disapproval to Parliament in the context of this matter is
a result of the special and extraordinary nature of the implementation of the DMA.

96 Corder Final Report on Methods for Scrutiny of Legislation by Parliament (March 1999) at C2.
97 Id.
98 Id at D1.
99 Id at E1-2.
100 Parliament of the Republic of South Africa Interim Report of Joint Subcommittee on Delegated Legislation on

Scrutiny of Delegated Legislation (October 2002) (Interim Report) at 3 and 16.

TSHIQI J
47

Under normal circumstances, the discretion will remain with Parliament. It must be
kept in mind that the discretion of Parliament does not mean that this Court’s hands are
tied and that it cannot hold that there is unconstitutionality because of the absence of
Parliament’s power to act. 101 It is necessary to consider whether this Court’s
intervention in the affairs of Parliament constitutes judicial overreach.

Is it a breach of the doctrine of separation of powers for this Court to grant relief
providing for a power to override?
[92] In EFF I, this Court held:

“It falls outside the parameters o f judicial authority to prescribe to the
National Assembly how to scrutinise executive action, what mechanisms to establish
and which mandate to give it, 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 limit s on judicial authority and the
Constitution’s design to leave certain matters to other branches of government’.” 102
(Emphasis added.)

[93] I accept that this is the general position our courts take. The intrusion by this
Court into the affairs of Parliament w ould normally run afoul of the principle of
separation of powers. The internal arrangements, proceedings and procedures of the
National Assembly are protected by section 57(1) of the Constitution.103

101 See, for example, Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly [2012] ZACC 27;

2012 (6) SA 588 (CC); 2013 (1) BCLR 14 (CC) at para 90 and Mazibuko v Sisulu [2013] ZACC 28; 2013 (6) SA
249 (CC); 2013 (11) BCLR 1297 (CC) at para 61.
102 EFF I above n 71 at para 93.
103 Section 57 of the Constitution states:
“(1) The National Assembly may—
(a) determine and control its internal arrangements, proceedings and procedures; and

TSHIQI J
48


[94] This Court goes on to state, however:

“At the same time, and mindful of the vital strictures of their powers, [courts] must be
on high alert against impermissible encroachment on the powers of the other arms of
government.”104

[95] In EFF II, the majority judgment highlights that this Court’s hands are not tied
where there is an impermissible encroachment on the principle of separation of powers.
In an expansion of EFF I , the majority judgment in EFF II found that the
National Assembly had f ailed to fulfil its implicit constitutional obligation under
section 89(1) to make rules creating a specifically tailored process for impeachment.105
Relying on Doctors for Life,106 it was found that this Court has a responsibility to ensure
that Parliament fulfils its obligations.107 This did not constitute judicial overreach. The
majority judgment justified the interference into internal parliamentary affairs by stating
that the order did not constitute a breach of the separation of powers since it did “no
more than the Court fulfilling its constitutionally assigned duty”. 108 As a result of the
National Assembly’s failure to create rules to regulate the removal of the President in
terms of section 89(1) of the Constitution, the impugned provision was found to be
invalid. Accordingly, the National Assembly was ordered to make the required rules to
remedy the defect in the provision.

[96] It is incorrect to state that if this Court were to decide the matter in favour of the
DA, this Court would not be giving effect to its own jurisprudence, as suggested by the

(b) make rules and orders concerning its business, with due regard to representative and
participatory democracy, accountability, transparency and public involvement.”
104 EFF I above n 71 at para 93.
105 EFF II above n 72 at paras 212 and 214.
106 Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC);

2006 (12) BCLR 1399 (CC) at para 38.
107 EFF II above n 72 at para 217.
108 Id at para 220.

TSHIQI J
49

second judgment, which I have had the benefit of reading. 109 It is important to keep in
mind that the Court is not saying how Parliament should ensure that it reserves to itself
the final decision -making power in respect of disaster regulations. This judgment
simply says that it should reserve the power to have the last say because of the nature
and extent of the delegated power. How it does that, will be left up to Parliament. Such
a reservation of power is not an impermissible intrusion into the executive branch – it
instead is a reservation which is in favour of Parliament regarding a function which
would ordinarily lie with it. The reading-in is necessitated by the fact that the timing of
a national state of disaster is unpredictable. A declaration of constitutional invalidity
without a reading-in in this matter would mean that in the unfortunate event of another
national state of disaster, there would be reliance on the DMA without the necessary
power of parliamentary override.

[97] It is necessary to quote the response of the majority judgment in EFF II to the
suggestion that its outcome constitutes judicial overreach. Jafta J stated:

“Conceptually it is difficult to appreciate how the interpretation and a pplication of a
provision in the Constitution by a court may amount to judicial overreach. The
Constitution itself mandates courts to interpret and enforce its provisions. The
discharge of this judicial function cannot amount to overreach whether one agr ees or
disagrees with a judgment that construes and applies the Constitution in a particular
way. A disagreement with a particular interpretation of the Constitution cannot sustain
the suggestion in question.”110

[98] There is a duty for Parliament to ensure th at there is a limit to the risk of
unconstitutionality in its legislation. Within the confines of the separation of powers,
this Court, as the final arbiter of the constitutionality of any law from Parliament, must

this Court, as the final arbiter of the constitutionality of any law from Parliament, must
declare such conduct as unconstitutional if it is determined to be so.


109 See the second judgment at [157].
110 EFF II above n 72 at para 219.

TSHIQI J
50

[99] In Glenister,111 this Court stated the following regarding the courts’ role in
upholding the Constitution:

“In our constitutional democracy, the courts are the ultimate guardians of the
Constitution. They not only have the right to intervene in order to prevent the violation
of the Constitution, they also have the duty to do so. It is in the performance of this
role that courts are more likely to confront the question of whether to venture into the
domain of other branches of government and the extent of such intervention. It is a
necessary component of the doctrine of separation of powers that courts have a
constitutional obligation to ensure that the exercise of power by other branches of
government occurs within constitu tional bounds. But even in these circumstances,
courts must observe the limits of their powers.”112 (Footnote omitted.)

[100] The question is whether Parliament has acted in accordance with, and within the
limits of, the Constitution in the delegation of its la w-making powers in relation to the
DMA. If it is found that it did, then this Court would have no basis to interfere with the
internal arrangement and affairs of Parliament. It is necessary to consider if the failure
to include the powers to approve or d isapprove in the DMA amounts to an act
inconsistent with the Constitution. If so, this Court is obligated to declare such an act
as unconstitutional.

Is there a need to include powers to approve or disapprove in order to maintain
the separation of powers?
[101] Legislation such as the DMA is necessary as it aims to provide an integrated and
coordinated disaster management policy in South Africa. Its key objectives include:
preventing or reducing the risk of disasters; mitigating the severity of disasters;
emergency preparedness; and rapid and effective response to disasters and post-disaster
recovery. In circumstances such as a national state of disaster, there is a need to delegate

recovery. In circumstances such as a national state of disaster, there is a need to delegate
powers by the National Assembly in order to deal with the disaster swiftly and

111 Glenister v President of the Republic of South Africa [2008] ZACC 19; 2009 (1) SA 287 (CC); 2009 (2) BCLR
136 (CC).
112 Id at para 33.

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effectively without first requiring the tabling of regulations dealing with urgent
situations before Parliament, especially if life is threatened. But it should always be
remembered that Parliament bears the ultimate responsibility for primary legislation, as
long as it stays within the confines of the Constitution.

[102] In this matter, we have drawn comparisons between the State of Emergency Act
and the DMA but there are other instances of legislation that provide a power to approve
and/or disapprove for Parliament. For example, the Protected Disclosures Act 113 states
that regulations related to the issuance of practical guidelines which explain the
provisions and procedures of that Act, must be submitted to and approved by Parliament
before publication. 114 The PAJA expressly provides Parliament with the power to
approve regulations made under that Act, before publication. 115

[103] As stated above, it is also trite that, although the principle of separation of powers
recognises the functional independence of branches o f government, there is a
desirability of ensuring that the constitutional order, as a totality, prevents the branches
of government from usurping each other’s powers. But our courts have long recognised
that no constitutional scheme can reflect a complete separation of powers.

[104] This Court in Nu Africa said that it is precisely because ours is not a system of
complete separation that there needed to be a focus on what constitutes constitutionally
permissible confluence.116 This is exactly the challenge in th is matter. The powers of
the Minister are broad. They are not powers of a kind that could in the ordinary course
be delegated by Parliament to the Executive. The respondents all say that they are
sufficiently constrained, such that there is no breach of the separation of powers, bearing
in mind the imperative of swift responses to disasters. The DA, by contrast, says that

113 26 of 2000.
114 Id at section 10(4)(b).
115 Section 10(4) of the PAJA.
116 Nu Africa above n 62 at para 76.

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the powers are impermissibly broad in the absence of more significant parliamentary
control than presently exists.

[105] In Nu Africa, this Court highlighted the established principle that Parliament is
entitled to delegate subordinate regulatory authority to other bodies and that this
category of legislation is usually in the form of rules or regulations. 117 It also
highlighted that the d elegation of authority to make subordinate legislation within the
framework of a statute which permits delegation is permissible but that what is generally
frowned upon is assigning plenary legislative powers to another body.118 The rationale
for this rejection, continued this Court, is that it is contrary to the Constitution insofar
as it violates the separation of powers.119

[106] This Court in Nu Africa, relying on First Certification,120 acknowledged that it
is possible for Parliament to delegate its legislative powers in appropriate
circumstances, but cautioned that there must be checks and balances in order to prevent
the usurpation of powers of one arm of government by another.121 In this matter, I have
already explored the constraints which are held to ensure t hat there are checks and
balances to prevent usurpation by the Minister. But the question that remains concerns
their adequacy and effectiveness.

[107] This Court in Nu Africa referred to a separate concurring judgment in
Executive Council,122 where the followin g factors were identified as those to be taken
into account in determining permissible limits of delegation of law -making authority
from Parliament to the Executive. In that matter it was held—


117 Id at para 78.
118 Id at para 81.
119 Id.
120 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC).
121 Nu Africa above n 62 at para 75; id at para 109.

121 Nu Africa above n 62 at para 75; id at para 109.
122 Executive Council above n 58.

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“the courts should balance various interactive factors including but not limited to:
‘(a) The extent to which the discretion of the delegated authority (delegatee) is
structured and guided by the enabling Act;
(b) The public importance and constitutional significance of the measure – the
more it touches on questions of broad public importance and controversy, the
greater will be the need for scrutiny;
(c) The shortness of the time period involved;
(d) The degree to which Parliament continues to exercise its control as a public
forum in which issues can be properly debated and decisions democratically
made;
(e) The extent to which the subject -matter necessitates the use of forms of rapid
intervention which the slow procedures of Parliament would inhibit;
(f) Any indications in the Constitution itself as to whether su ch delegation was
expressly or impliedly contemplated.’”123

[108] Importantly, this Court in Nu Africa highlighted that in Executive Council, the
President was required to submit the proclamation to Parliament within a certain
period.124

[109] It is not contentious that during a national disaster there is a need to act urgently
and effectively and that Parliament may not always be the place to pass legislation to
deal with such a disaster promptly. There is no way, in those instances, that legislation
can predetermine the powers and specific decisions which must be made in order to deal
with a specific kind and magnitude of a particular national disaster. Each disaster would
require a different approach in order to deal with the needs of the country’s inhabitants
to reduce the adverse effects of the disaster.

[110] It is because of this, that I find it reasonable to provide the Minister with the
broad range of powers conferred in terms of the DMA. But there is a need to ensure
that constraints to this broad range of powers a re effective, otherwise there is a breach

that constraints to this broad range of powers a re effective, otherwise there is a breach
of the doctrine of separation of powers. During debate in this Court, counsel for the

123 Nu Africa above n 62 at para 90, quoting Executive Council above n 58 at para 206.
124 Nu Africa id at para 91.

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DA agreed that it is not the DA’s case that all regulations must start in Parliament before
they can be given effect. As I und erstand the argument, the DA contends that, even
after the regulations have been made, Parliament must be granted an opportunity to
consider them, and possibly “veto” them, or have a final decision, if this is necessary.

[111] The factors listed in Nu Africa and in Executive Council are helpful in the
enquiry on whether there is indeed an impermissible delegation of power that leads to
a breach of the separation of powers. The factors can be applied as follows in this
matter.

(i) Scope and degree of the delegation
[112] The powers conferred to the Minister, as has already been mentioned, are
extremely wide. In particular, section 27(2)(n) of the DMA is so expansive that it
empowers the Minister to take any other steps necessary to prevent an escalation of the
disaster, or to alleviate, contain and minimise the effects of the disaster. These powers
entail the making of regulations that may have the effect of limiting the rights
entrenched in the Bill of Rights and the Minister is also provided with a broad range of
powers to suspend or limit rights conferred in terms of other Acts of Parliament. The
Minister is also granted powers to delegate certain functions to other members of the
Executive in the sense that the Minister can authorise the issuance of directi ons. The
Minister can prescribe penalties for contravention of regulations.

(ii) The public importance and constitutional significance of the
measure
[113] I agree that the more a measure touches on questions of broad public importance
and controversy, the greater the need will be for scrutiny. The national state of disaster
affects the public at large and has the potential to materially limit the rights enshrined
in the Constitution, and rights in other legislation. Meanwhile its object s and purpose

in the Constitution, and rights in other legislation. Meanwhile its object s and purpose
to protect the public are also very relevant. There must be a balancing exercise.

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(iii) Subject matter to which it relates
[114] The delegation of powers to the Minister is only applicable when a national state
of disaster is declared and is subject to the prerequisit es for the declaration of such
disaster. The Minister cannot act outside of the provisions in the DMA. This is, in a
way, a limitation on the powers of the Minister.

(iv) The shortness of the period
[115] It is envisaged that the delegation lasts for a short duration and may be extended
for short periods if the national state of disaster continues. The duration therefore is as
long as it is necessary. It is not a delegation that can continue ad infinitum (forever),
but by way of repeated extensions, it may s till last for a lengthy period if the disaster
itself lasts for a long time.

(v) The degree to which Parliament continues to exercise its control
as a public forum in which issues can be properly debated and
decisions democratically made
[116] The oversight and accountability measures by Parliament have already been
identified. It is not disputed by the DA that Parliament was involved in consultations
and engagements through parliamentary committees during the pandemic. What is in
dispute, is whether the oversight measures mentioned by the respondents are sufficient,
in circumstances where the delegated powers relate to the exercise of substantive
legislative functions as opposed to the administrative implementation of legislation.
Importantly, what is conside red under this factor is the degree to which Parliament
exercises its control. The oversight measures mentioned by the respondents do not
constitute control, as Parliament does not have the final say regarding the regulations
passed by the Minister. As stated above, I find that in terms of the DMA, the oversight
measures imposed are insufficient and Parliament does not have control over the
delegated legislative powers.

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56

(vi) Any indications in the Constitution itself as to whether such
delegation was expressly or impliedly contemplated
[117] Under sections 43 and 44 of the Constitution, the national legislative authority is
vested in Parliament. Section 44(1)(a)(iii) of the Constitution particularly empowers
the National Assembly to assign its legislative powe rs, except the power to amend the
Constitution, to any legislative body in another sphere of government. It is accepted
that the delegation of regulation -making powers to the Minister is consequently
expressly contemplated in the Constitution.

[118] Considering the above factors, I agree that there are constraints on the Minister’s
powers but that they are inadequate, considering the wide powers delegated to the
Minister and the consequences of the powers on the Bill of Rights, other legislation and
other members of the Executive.

[119] The constraints encourage debate, scrutiny, accountability and oversight. There
is also the avenue of taking the exercise of the powers by the Minister on review. I start
by analysing the review powers of the courts.

[120] I agree that the regulations by the Minister are capable of being challenged in
court by means of an application for review. There were some challenges of this kind
in relation to executive action taken in response to the COVID -19 pandemic.125 But it
is not disput ed that, generally, reviews take some time to finalise, and in such
proceedings the applicant is confronted by the Plascon-Evans rule in relation to factual
disputes. Even if the review application is heard on an urgent basis, there may be one
or two appeals. Although the present case is not a review, it nevertheless gives some
indication of how long a case may take to finalise. The national state of disaster was
declared on 15 March 2020. The DA launched its application on 18 May 2020. More
than five years later, the powers of the Minister concerning that disaster are still the

than five years later, the powers of the Minister concerning that disaster are still the

125 See, for example, Esau above n 49.

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subject of the present appeal (which is a second appeal, the case having previously
served before the Supreme Court of Appeal).

[121] I accept that a review can be brought as a matte r of urgency, as was done in
Freedom Front Plus . However, in most cases, such as Esau and British American
Tobacco, the challenge to regulations may be subject to appeals to higher courts, which
are time consuming and costly for the litigants involved. T his is a clear illustration of
the delays in proceedings for these kind s of challenges. It must also be kept in mind
that a national state of disaster can vary in the duration for which it lasts. There are
disasters which may be declared for a long perio d, such as the COVID -19 pandemic.
However, it is possible that another, such as a flood -related disaster, could last for a
shorter period such as a month. In such a circumstance, the possible infringement of
constitutional rights may become moot by the t ime the matter receives judicial
intervention. An example of this scenario can be seen in Esau, where the Court stated
the following:

“In my view, it is not necessary to decide on the validity of the clothing directions.
Direction 4 provided that they only remained in force for the duration of level 4. They
thus ceased to be of force or effect on 31 May 2020 when level 4 ended and the country
was moved to level 3. Soon after this, the Minister issued a notice in which he advised
the public that the clo thing directions had expired and were no longer in force. I can
see no practical purpose in deciding the merits of the challenge and take the view that
the court below was correct in concluding that it was moot.”126

[122] This, coupled with the number of people who can be impacted by regulations
issued in a national state of disaster, is a clear indication that the comparison of a
national state of disaster to any other constitutional issue where a person seeks to assert

national state of disaster to any other constitutional issue where a person seeks to assert
their constitutional right is inappropriat e. There is a derogation from human rights on
a substantial level, as a result of the Minister’s broad powers in the DMA. If the
inhabitants of South Africa are reliant primarily on the review process, it means that

126 Id at para 157.

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people will have to wait for their rig hts to be vindicated, if it is not rendered moot at
some point.

[123] However, there is a more principled answer to reliance on judicial review as an
effective constraint. In order for a review to succeed, the applicant must show that the
impugned conduct of t he Executive was unlawful. However, in the context of the
doctrine of separation of powers, the question is not whether the Executive acted
unlawfully but whether the Executive rather than Parliament should have the final say
on disaster regulations. The Minister might not commit a reviewable illegality in
promulgating disaster regulations, given the broad nature of the Minister’s powers in
terms of section 27(2) of the DMA. Review plainly would not be a remedy in such a
case, yet the problem remains: should the Executive be the final repository of such wide
powers? Review caters for illegality. It does not cater for differences of opinion on
matters vitally affecting the country’s inhabitants. The thrust of the DA’s case is that
ultimately it is the o pinion of Parliament rather than the opinion of the Executive that
should be decisive. The DA’s case in the present proceedings is not that any of the
disaster regulations or directives suffered from reviewable irregularities but that the
Executive should not have had the final say in their continued operation.

[124] The question that then arises is, as stated, regarding the sufficiency of the other
constraints in the Act and the degree to which the National Assembly is able to exercise
control as a public foru m in which issues can be properly debated and decisions
democratically made.127 This also raises the question whether Parliament has the power
to express a final say on the decisions and regulations of the Minister.

[125] For instance, the Model emphasises the value of public participation and refers
to available interventions at the instance of members of the public. It further records

to available interventions at the instance of members of the public. It further records
that parliamentary committees are established as instruments of the Houses of
Parliament in terms of the Constitution, legislation, the Joint Rules, Rules of the

127 See [16] for the constraints in terms of the DMA.

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National Council of Provinces, Rules of the National Assembly and resolutions of the
Houses, which are regarded as the engine rooms of Parliament. 128

[126] I hold that the present constraints are not effective or adequate because none of
them entitle Parliament to overrule the Executive. These do not make it necessary for
Parliament to indicate its approval or disapproval of the regulation s made in terms of
the DMA. During a state of emer gency for instance, section 37(2) of the Constitution
provides that any declaration of a state of emergency, and any legislation enacted or
other action taken in consequence of that declaration, may be effective for no more than
21 days from the date of de claration unless the National Assembly resolves to extend
the declaration. Parliament thus plays a crucial supervisory role because the
National Assembly decides whether to extend the state of emergency or not. There is
no such requirement in the DMA and the National Assembly is not afforded the
opportunity to approve or disapprove the regulations.

[127] It is also necessary for such powers to be expressly stated. As already noted,
section 27 of the DMA, similarly to section 2 of the State of Emergency Act, permits
the Minister to encroach on several fundamental rights contained in the Bill of Rights.
Section 3 of the State of Emergency Act specifically grants Parliament the power to
disapprove of emergency regulations or make recommendations to the President .
Section 4 of the State of Emergency Act provides for the lapsing of such regulations in
the event that the National Assembly disapproves them. The effect of the declaration
of a state of emergency is similar to that of the declaration of a national state of disaster,
insofar as the effect relates to the derogation from fundamental rights. Unless the
National Assembly has the power to finally approve or disapprove the Executive’s

National Assembly has the power to finally approve or disapprove the Executive’s
regulations, the inescapable conclusion would be that section 27 results in a breach of
the separation of powers between the Executive and the Legislature, as the Minister is
provided with an impermissible delegation of power with no caveat and no solution on
how the decision can be subject to a final say by Parliament.

128 See [82] for the legislative provisions which illustrate the National Assembly’s oversight mechanisms.

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[128] My view is that section 27 of the DMA must be understood in the context of the
doctrine of separation of powers. As already stated, it is comparable legislation to the
State of Emergency Act in that the Minister is granted very broad legislative powers
that permit the creation of a position akin to a state of emergency. Ordinarily, the
assignment of such broad legislative powers to the Executive could, in certain instances
such as in this matter , offend the doctrine of separation of powers. It may be
unavoidable in cases of disaster and emergency for the Executive to have the interim
power to act swiftly. In the same way, and in order to render this departure from the
separation of powers constitutionally legitimate, it may be necessary to have a balanced
departure from the separation of powers in favour of Parliament. Parliament’s ordinary
functions of oversight and scrutiny do not entitle it to act in place of the Executive.
Ordinarily, the Executive on the one hand and Parliament on the other must “stay in
their own lanes”.

[129] Section 37(3) of the Constitution, on the other hand, specifically provides that a
competent court may decide on the validity of a declaration of a state of emergency,
any extension thereof, and any legislation enacted or other action taken in consequence
of the declaration of a state of emergency. Section 37(2) also stipulates that the state of
emergency may only be effective for 21 days unless the National Assembly resolves to
extend it. It also grants the National Assembly the power to vote on any subsequent
extensions of the state of emergency. Section 3(2)(a) of the State of Emergency Act
provides the National Assembly with the power to disapprove the regulations while
section 4 provides that the regulations lapse prospectively if disapproved.

[130] In a state of emergency, the Legislature has spelt out the powers of the courts
and the National Assembly. In a national state of disaster, the Legislature has neither

and the National Assembly. In a national state of disaster, the Legislature has neither
excluded the powers nor spelt them out. Just as the assignment of very wide legislative
powers to the Executive has to be contained in an Act of Parliament (and can be
challenged for constitutional consistency), so the balancing power of Parliament to
intervene in the work of the Executive must be contained in legislation (so that it too

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can be challenged for constitutional consistency). In the absence of legislation
permitting Parliament to override measures issued by the Executive, Parliament would
be acting unconstitutionally by trying to do so, because such conduct would be contrary
to the separation of powers and would thus need a specific legislative source to justify
the departure.

[131] The value of the statutory source is this: the statute in question (here, the DMA)
spells out the legislative assignment to the Executive and should, in my view, spell out
Parliament’s power to override the Executive. This conveys to the public at large that
in Parliament ’s view it may, notwithstanding ordinary principles of s eparation of
powers: (a) assign these wide legislative powers to the Executive; and (b) retain a power
to override the Executive. It is not in every piece of legislation that this would be
constitutionally permissible, so Parliament needs to clearly ident ify the cases in which
it operates. In all other “ordinary” cases, Parliament cannot – consistently with the
separation of powers – override the Executive. Nor is it desirable to leave everyone
guessing as to whether, in relation to a particular statute, this override power is or is not
appropriate. Parliament must apply its mind to it and enact it. Parliament has done so
in the case of states of emergency, the PAJA and the Protected Disclosures Act.
Similarly, it should also have done so for national states of disaster.

[132] To be clear, this judgment does not hold that all regulations must be subject to a
“veto” power. I accept that such a measure for all regulations, as recommended in the
Corder Report, has not been adopted by Parliament. 129 Whether it should be is a
question left to Parliament. What is before this Court is whether, in the context of the
DMA, when there is a delegation of wide legislative powers, there should be an
incorporation of a power to approve or disapprove the regul ations that may impact

incorporation of a power to approve or disapprove the regul ations that may impact
fundamental rights. The finding that it should include such a power flows from the
analysis set out in Nu Africa which has been done after considering, amongst others, the
control, or lack thereof, which Parliament has with respect to the regulations passed

129 See [89] to [91] above.

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during a national state of disaster.130 In the circumstance of all other regulations, a court
will have to apply the test set out in Nu Africa to the facts before it.

[133] Perhaps it is the usage of the word “oversight” that creates confusion as to when
Parliament should have the power to approve or disapprove regulations. This power
falls outside of the routine oversight measures required by sections 42(3) and 55(2) of
the Constitution. In circumstances where the Executive is provide d with a wide range
of legislative powers which have an impact on fundamental rights, what will constitute
a balancing power to ensure that there is a permissible delegation of power, is to allow
Parliament to have a final say. This measure is a judicial statement based on the
Constitution regarding the necessary preconditions when there is an assignment of wide
legislative powers to the Executive – it is not a judicial intrusion into the domain of
Parliament’s discretion on how to exercise its routine ove rsight functions in terms of
sections 42(3) and 55(2) of the Constitution.

[134] There is a distinction to be made between the delegation of legislative power for
making regulations for the purpose of the administrative implementation of an Act of
Parliament an d the delegation of legislative power for the purpose of making
substantive laws akin to those usually made by Parliament. In the case of the former,
the ordinary oversight measures imposed by sections 42(3) and 55(2) of the
Constitution might not raise questions regarding the separation of powers. In that case,
it might be an unconstitutional intrusion to state that Parliament can override the
Executive. In contrast, in the case of the latter, legislative power cannot be fully
delegated to the Executive since the primary function lies with Parliament. It would
constitute an unconstitutional transfer of legislative power for Parliament to fully

constitute an unconstitutional transfer of legislative power for Parliament to fully
delegate this power without appropriate safeguards. In circumstances such as this case,
there cannot be a full delegation of power transferred to the Executive when there could
be a limitation of fundamental rights. Parliament must, in such circumstance s, set out
the scope of delegation and still ensure, within such legislation, that the legislative

130 See the analysis at [111] to [118] above.

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boundaries pr escribed by the Constitution are not exceeded. This obligation on
Parliament to ensure that legislation does not exceed constitutional boundaries is
fundamentally different from the routine oversight function exercised by parliamentary
committees.

[135] The second judgment states that the challenge was that section 27 of the DMA
is unconstitutional since it does not contain effective oversight mechanisms and the DA
does not contend that sections 55(2) and 57 of the Constitution require a “veto ” power
or power o f approval. 131 The second judgment goes further to categorise the correct
question before this Court as whether the Constitution requires such a “veto” power.132
Even if it was found that the power to approve or disapprove constitutes an oversight
measure, which I do not find, as much as a “veto” power cannot be sourced in
sections 55(2) and 57, all the oversight and accountability mechanisms are not expressly
set out either. The Model lists a variety of mechanisms which may be used for oversight
and accountability measures, including the establishment of an oversight committee that
can recommend the investigation of specific problems that it has identified.133 There is
nothing in the Model to suggest that the implementation of the National Assembly’s
power to approve or disapprove in legislation cannot be a mechanism to ensure effective
oversight. In any event, as expressed above, the power of Parliament to appro ve or
disapprove falls outside of the scope of the routine oversight measures.

[136] It has already been accepted that certain legislation incorporates such safeguards.
If it is, indeed, decided that there is no need to expressly provide further safeguards in
legislation in order for there to be effective oversight, it raises the question of why it is
ever appropriate to include these safeguards in general.

[137] The unconstitutionality of the provision, I find, is sourced from the breach of the

[137] The unconstitutionality of the provision, I find, is sourced from the breach of the
separation of powers. In this regard, the omission to include the manner in which, and

131 See the second judgment at [204].
132 Id at [206].
133 Model above n 29 at 45.

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extent to which, Parliament may intervene in the DMA leads me to a conclusion that
the impugned section is inconsistent with the Constitution.

Section 101(4) of the Constitution
[138] There was another point raised by the Court mero motu (of its own accord) during
the hearing of the matter and on which counsel for the parties were asked to file
supplementary written submissions after the hearing: the applicability of section 101(4)
of the Constitution. Subsections 101(3) and (4) provide that:

“(3) Proclamations, regulations and other instruments of subordinate legislation
must be accessible to the public.
(4) National legislation may specify the manner in which, and the extent to which,
instruments mentioned in subsection (3) must be—
(a) tabled in Parliament; and
(b) approved by Parliament.”

[139] The DA submits that section 101(4) empowers Parliament to overturn any
decision taken by the Executive, provided Parliament is granted such a power by
legislation. The DA submits that under appropriate circumstances, Parliament is under
a duty to build a parliamentary “veto” into legislation and in this case, Parliament was
constitutionally required to exercise its section 101(4) power to build a “veto” into the
DMA. The Minister and the President submit that section 101(4) is purely permissive
and does n ot impose any duty on Parliament. The Minister and the President submit
that the purpose of section 101(4) is not clear but it seems merely to say that subordinate
legislation may be made subject to parliamentary approval.

[140] Section 101 regulates instruments of delegated legislation made by the Executive
through a delegation of Parliament’s law -making authority, in a provision which
permits this delegation. The Constitution acknowledges the need to safeguard the
delegation of legislation by providing for national legislation to specify the manner and
extent to which instruments such as regulations must be tabled and approved by

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Parliament.134 The applicability or not of section 101(4) was, as stated, raised by this
Court mero motu and it was clear during argument that none of the parties had thought
of advancing any argument along these lines. However, this Court is not only entitled
but obliged to raise a point of law which is apparent on the papers. 135 Although the
applicability of this section was raised, it does not take the determination of the issues
that arise any further.

Other jurisdictions
[141] That the DMA should have incorporated a provision which expressly provides
the manner and extent of Parliament’s interv ention is supported by law in other
jurisdictions. This is how the various jurisdictions work.

Australia
[142] The Legislation Act136 regulates oversight over delegated legislation. The
Parliament of Australia ultimately retains authority over delegated legisla tion and has
the power of disallowance. The delegated legislation is subject to parliamentary
scrutiny and to the Parliament’s “veto” power.137 In the circumstance where the
provisions of the existing enabling Act are different to the Legislation Act, the
Legislation Act may override the provisions of the enabling Act.138 What is required in
terms of the Legislation Act, is that the rule -maker for a legislative instrument or a
notifiable instrument must lodge the instrument for registration as a notifiable
instrument as soon as practicable after it is made.139 The rule-maker is required to lodge
an initial explanatory statement 140 for the instrument for registration as soon as

134 Section 101(4) of the Constitution.
135 CUSA v Tao Ying Metal Industries [2008] ZACC 15; 2009 (1) BLLR 1 (CC); 2009 (2) SA 204 (CC) at para
68.
136 139 of 2003.
137 “Legislation” in Elder (ed) House of Representatives Practice – Parliament of Australia 7 ed (Department of
the House of Representatives, Canberra 2018) (House of Representatives Practice) at 409.
138 Id.

138 Id.
139 Legislation Act above n 136 at subsections 15G (1) and (3).
140 An initial explanatory statement is defined as follows:

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practicable.141 The legislative instrument is not enforceable by or against any person
unless the instrument is registered as a legislative instrument. 142 Within six days after
the registration of the instrument, the Office of Parliamentary Counsel must arrange for
a copy of each registered legislative instrument to be delivered to each House of the
Parliament.143 If this is not attended to timeously, the legislative instrument is
immediately repealed after the last day of the prescribed time.144

[143] Thereafter, the House of the Parliament is empowered to disallow the legislative
instrument within 15 sitting days of that House.145 In the interim, and until disallowed,
the legislative instrument is effective, but an Act may provide that it does not come into
effect until the disallowance period has expired. 146 It is noteworthy that the
Legislation Act provides for the sun-setting of legislative instruments, which entails that
after the 10th anniversary of the instrument’s registration, the instrument is repealed,
with provisions for certain exceptions.147


“An initial explanatory statement, or a replacement explanatory statement, for a legislative
instrument must:
(a) be approved by the rule-maker; and
(b) explain the purpose and operation of the instrument; and
(c) if any documents are incorporated in the instrument by reference —contain a
description of the incorporated documents and indicate how they may be obtained; and
(d) if consultation was undertaken under section 17 before the instrument was made —
contain a description of the nature of that consultation; and
(e) if no such consultation was undertaken —explain why no such consultatio n was
undertaken; and
(f) if the instrument is a disallowable legislative instrument —contain a statement of
compatibility prepared under subsection 9(1) of the Human Rights (Parliamentary
Scrutiny) Act 2011; and

Scrutiny) Act 2011; and
(g) contain such other information as is prescribed by regulation.”
141 Legislation Act above n 136 at section 15G(4).
142 Id at section 15K(1).
143 Id at section 38(1).
144 Id at section 38(3).
145 Id at section 42. See also section 44 which provides for the legislative instruments that are not subject to
disallowance.
146 House of Representatives Practice above n 137 at 410.
147 Legislation Act above n 136 at section 50.

TSHIQI J
67

[144] In the alternative to disallowance, delegated legislation may come into force only
through explicit approval by the House of Parliament. However, certain authors express
the view that this is not common practice.148

Zambia
[145] The Interpretation and General Provisions Act149 regulates the process regarding
statutory instruments. Section 22 of this Act stipulates that all rules, regulations and
by-laws shall be laid before the National Assembly of Zambia as soon as they are made,
and that the National Assembly has the power to pass a resolution that the inst rument
be annulled within 21 days thereafter. 150 The annulment of the instruments will not
affect the validity of any actions taken under the instrument prior to the annulment. 151

[146] It must be noted that Zambia’s legislative authority vests in, and is exercised by,
Parliament.152 However, Parliament is empowered to delegate authority to make
statutory instruments to another person.153

[147] Insofar as oversight and scrutiny of the delegated legislation is concerned, the
Committee on Legislation and International Agreem ents performs the function of
scrutinising statutory instruments where Parliament has delegated powers to another
person, to ensure that the power to make such instruments has been properly exercised
by the person or authority.154


148 House of Representatives Practice above n 137 at 413.
149 1964, Chapter 2.
150 Id at section 22(1).
151 Id.
152 Constitution of Zambia (Amendment) Act 2 of 2016 at section 62(2).
153 Id at section 67(1).
154 National Assembly of Zambia Standing Orders, 2024 at section 204(2)(a)(ii).

TSHIQI J
68

Kenya
[148] The Statutory Instruments Act155 regulates the operation of statutory instruments
made directly or indirectly under any Act of the Kenyan Parliament or other written
legislation.156 Part of t he purpose of the Act is to improve mechanisms for
parliamentary scrutiny of statutory instruments.157 The process for scrutiny of statutory
instruments requires that within seven sitting days after the publication of the
instrument, a copy of the statutory instrument is transmitted to the responsible clerk for
tabling before the relevant Hous e of Parliament. 158 In the event that the statutory
instrument is not laid before the relevant House of Parliament within the prescribed time
period, the statutory instrument will cease to have effect immediately after the last day
for it to be tabled. 159 However, this does not affect the validity of any act done before
the instrument becomes void.160

[149] Upon tabling the statutory instrument before the relevant House of Parliament,
the instrument will be referred to the Committee on Delegated Legislation or any other
committee established for the purpose of reviewing and scrutinising statutory
instruments (Committee).161 The Committee is permitted to exempt certain statutory
instruments from scrutiny if the Committee decides that it is not reasonably practical
due to the number of regulations in that class. 162 Subsequent thereto, the Committee
will either make a report to Parliament with a resolution that the statutory instrument be
revoked or the House of Parliament will approve the statutory instrument within 28
sitting days.163


155 23 of 2013, as amended by the Statute Law (Miscellaneous Amendments) Act 25 of 2015.
156 Id at section 3(1).
157 Id at section 4(d).
158 Id at section 11(1).
159 Id at section 11(4).
160 Id.
161 Id at section 12(1).
162 Id at section 14.
163 Id at subsections 15(1) and (2).

TSHIQI J
69

Conclusion on these other jurisdictions
[150] What can be deduced from the comparative analysis above, is that many
jurisdictions have included a provision in their legislation which expressly empowers
Parliament to overrule the Executive after it issues regulations during, for example, a
national state of disaster. The requirement is that such regulations be tabled before
Parliament as soon as possible.

Conclusion and relief
[151] It must follow that section 27 of the D MA is unconstitutional as it grants
untrammelled legislative powers to the Executive without incorporating effective
parliamentary safeguards. In terms of section 172(1) of the Constitution, this Court
must declare any law or conduct that is inconsistent with the Constitution as invalid to
the extent of that inconsistency and may make any order that is just and equitable.

[152] In determining just and equitable relief, it must be kept in mind that, generally,
disasters are unprecedented and they occur unexpecte dly. An order of declaration of
invalidity without an interim remedy would be inappropriate should such disaster occur.
It is my view that in the interim, a reading -in which provides the National Assembly
with the power to approve or disapprove will cure the identified defects pending final
remedial legislation by Parliament. This is not to usurp the powers of Parliament. This
Court said in Doctors for Life:

“The primary duty of the courts in this country is to uphold the Constitution and the
law ‘which they must apply impartially and without fear, favour or prejudice’. And if
in the process of performing their constitutional duty, courts intrude into the domain of
other branches of government, that is an intrusion mandated by the Constitution. What
courts should strive to achieve is the appropriate balance between their role as the
ultimate guardians of the Constitution and the rule of law including any obligation that

ultimate guardians of the Constitution and the rule of law including any obligation that
Parliament is required to fulfil in respect of the passage of laws, on the one hand , and
the respect which they are required to accord to other branches of government as

TSHIQI J
70

required by the principle of separation of powers, on the other hand.” 164 (Footnote
omitted.)

[153] In the circumstances, it would have been appropriate for this Court to make an
order for interim relief during the 24 -month period of suspension of the declaration of
invalidity.

[154] The DA has asked for a reading -in which provides the National Assembly with
the power to approve or disapprove any declaration, regulation or direction. The focus
of this judgment and the arguments during the proceedings was limited to the powers
of the Minister to make regulations that are not subjected to parliamentary intervention.
The challenge to the power of the Minister to declare the national state of disaster was
wisely not pursued. Accordingly, this judgment is limited to the powers of the
National Assembly in Parliament to approve or disapprove regulations and directions
which may be made by the Minister.

Costs and order
[155] The conclusion reached would have meant that the DA is successful and should
be awarded its costs.

[156] If I had carried the majority, I would have made the following order:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside and replaced with
the following:
a. “It is declared that section 27 of the Disaster Management
Act 57 of 2002 ( DMA) is invalid and inconsistent with the
Constitution to the extent that it does not empower the

164 Doctors for Life above n 106 at para 70.

TSHIQI J
71

National Assembly to either approve or disapprove the regulations
promulgated by the Minister.
b. The declaration of invalidity is suspended for 24 months from the
date of this order to afford Parliament an opportunity to remedy
the constitutional defects giving rise to the constitutional
invalidity.
c. Pending the coming into force of any remedial legislation as
contemplated in paragraph 3(b), the impugned provision shall be
read as if a new section 27(4A) has been added immediately after
section 27(4), reading as follows:
‘27(4A)
(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 possi ble after the publication
thereof.
(b) The National Assembly may at any time—
(i) by resolution disapprove of any such regulation or
direction; or
(ii) by resolution make any recommendation to the
Minister in connection with such regulation or
direction.
(c) Any such 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
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 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

TSHIQI J / THERON J
72

liability acquired, accrued or incurred, as at the said date,
under and by virtue of any such 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).’
d. No declaration of a state of disaster, no extension thereof and no
regulation or direction made under section 27 of the DMA prior to
the date of this order are invalidated only by virtue of the order
above.”
8. The respondents shall be jointly and severally liable for th e applicant’s
costs in the High Court, the Supreme Court of Appeal and this Court,
including the costs of two counsel where so employed.



THERON J (Goosen AJ, Kollapen J, Majiedt J, Mhlantla J and Opperman AJ
concurring):


“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 it, 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.”165

Introduction
[157] This statement by this Court in EFF I, a leading case on parliamentary oversight,
clearly sets out the ambit of judicial authority in an enquiry related to the oversight role
exercised by the National Assembly in holding the Executive accountable. This Court,

165 EFF I above n 71 at para 93.

THERON J
73

were it to decide this matter in favour of the DA and grant to Parliament what amounts
to a veto power over subordinate legislation enacted pursuant to section 27 of the DMA,
would be engaging in judicial overreach. This Court would also not be giving effect to
its own jurisprudence. Furthermore, it would grant to Parliament powers that go beyond
the bounds of section 37 of the Constitution. Perhaps most importantly, it would grant
to the DA, through judicial decree, what it (the DA) has not been able to secure through
the constitutionally sanctioned legislative process.166

[158] The DA contends that section 27 of the DMA violates the Constitution in three
respects. First, it constitutes an impermissible delegation of legislative power by
Parliament to the Minister. Second, it permits the creation of a simulated state of
emergency of the kind contemplated by section 37 of the Constitution without the
safeguards provided in section 37 and in sections 3 and 4 of the State of Emergency
Act. Third, it fails to enable the National Assembly to scrutinise and oversee executive
action as required by sections 42(3) and 55(2) of the Constitution. In this regard, it
contends that the DMA does not contain any appropriate mechanism to ensure that the
National Assembly is able to fulfil this role.

[159] The DA made it clear, in its founding papers, that it did not quibble with the
scope of the powers delegated to the Minister under the DMA. It merely contended
that, given the scope of the powers delegated to the Minister, the DMA failed to
incorporate appropriate oversight measures. The DA emphasi sed the ambit of its case
in its replying affidavit in the High Court as follows:

“First, the applicant’s case has never been that, as a matter of fact, Parliament has been
completely supine during the pandemic. It is that section 27(2) of the DMA gives the
COGTA Minister more power than the Constitution permits – because it amounts to an

COGTA Minister more power than the Constitution permits – because it amounts to an
impermissible delegation of legislative power and an abdication of Parliament’s
oversight role, and because it permits a simulated state of emergency. If this is true, it

166 As referred to by the first judgment at [89] to [90], the National Assembly’s Joint Rules Committee convened
a Subcommittee on Delegated Legislation, which recommended the enactment of powers for Parliament to
approve or disapprove subordinate legislation. See Corder above n 96 at F 4.1.3 and Interim Report above n 100
at 8.

THERON J
74

is true regardless of how many meetings Parliament has had and how many questions
have been raised by members of Parliament.”

[160] The DA proposed reading-in relief that would remedy the unconstitutionality by
granting the National Assembly power to veto, by resolution, a declaration of a national
state of disaster, extensions of it, as well as any regulations promulgated under
section 27. The DA’s reading -in relief sought to legislatively recast section 27 of the
DMA to match the framework of section 37 of the Constitution, along the lines provided
in the State of Emergency Act.

[161] The Full Court, by majority, rejected the DA’s contentions and dismissed the
application. The Supreme Court of Appeal, also by majority, dismissed an appeal by
the DA. The minori ty in the Supreme Court of Appeal would have upheld the appeal
on the limited ground based on an alleged simulated state of emergency. In my view,
the majority judgments in the High Court and the Supreme Court of Appeal were correct
in dismissing the DA’s contentions.

A state of disaster is not a simulated state of emergency
[162] The DA argues that the DMA permits an unconstitutional, simulated state of
emergency that falls foul of section 37 of the Constitution. The central contention by
the DA is that a national state of disaster, like a state of emergency, suspends the
constitutional order. The Full Court dismissed this contention in Freedom
Front Plus.167 It said the following about a state of emergency:

“In other words, in the direst circumstances, where the life of the nation, and the
constitutional order itself may be under threat, it may be necessary in the short term to
suspend the normal constitutional protections in order, ultimately, to restore the
constitutional state. It is for this reason that some modern constitutions permit the
suspension or derogation from fundam ental rights during states of emergency. It is

suspension or derogation from fundam ental rights during states of emergency. It is
undoubtedly an extraordinary constitutional measure, and not one that is intended to be

167 Freedom Front Plus above n 10.

THERON J
75

used lightly. This is why the jurisdictional requirements under section 37(1) are so
strict.”168

[163] The hallmark of section 37 of the Constitution is that it permits curtailment of
the Bill of Rights.169 This Court put it as follows in First Certification:

“[Section] 37 envisages national legislation authorising the temporary and partial
curtailment of the Bill of Rights in li mited circumstances and subject to detailed
conditions. In principle there can be no objection to such authorisation. Partial
curtailment of the Bill of Rights during a genuine national emergency is not inherently
inconsistent with ‘universally accepted fundamental human rights, freedoms and civil
liberties’. Nor can it be said that the safeguards provided by [section] 37 against
possible legislative or executive abuse of emergency powers are inadequate.”170

[164] In my view there are fundamental differences between a national state of disaster
and a state of emergency. Although there are certain similarities between the two states
(discussed below), these do not, without more, warrant any specific mechanisms found
in the State of Emergency Act, or section 37 o f the Constitution, to be imported into
section 27 of the DMA.

[165] Section 37 creates a unique limitation of the protections otherwise provided by
the Bill of Rights. It requires the adoption of legislation authorising temporary and
partial curtailment of the Bill of Rights.171

168 Id at para 62.
169 First Certification above n 120 at para 91 and Ex parte Chair person of the Constitutional Assembly: In re
Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 24;
1997 (1) BCLR 1 (CC); 1997 (2) SA 97 (CC) at para 28.
170 First Certification id at para 91.
171 Id. See a lso the justification of section 37 provided by Fritz “States of Emergency” in Woolman et al (eds)

Constitutional Law of South Africa Service 5 (2013) at 61-4 to 61-5, on the basis that:
“[O]bservation of the rights and protections provided by modern const itutions in situations of
emergency can prevent the government from responding efficiently and energetically to
enemies or to events that would destroy those rights and, perhaps, even the constitutional order
itself. . . . The placement of [section 37] in the Bill of Rights indicates that it follows the
orthodox justification offered for emergency regimes – that it is intended to allow for threats to
the nation to be addressed in such a way that the constitutional state is returned to its normal
functioning.”

THERON J
76


[166] States of emergency have played a particularly infamous role in South African
history, and in our pre-democratic past they were closely connected to serious violations
of human rights.172 The protection of the courts was largely unavailable to the populace
under these states of emergency. 173 Given this particular context, it is no surprise that
section 37 of the Constitution sets a particularly high threshold for a state of emergency
to be declared. It also provides clear mechanisms by wh ich declarations of states of
emergency, and any legislation enacted under them, can be challenged, as well as strict
limits on which, and to what extent, there could be a derogation from constitutional
rights under a state of emergency.

[167] The first judgmen t, which I have had the benefit of reading, recognises the
difference in jurisdictional requirements (or “thresholds”) that need to be established
before a state of emergency or a national state of disaster may respectively be
declared.174 It finds however that, despite the difference in thresholds, the two states
may have similar effects, given that both allow limitations of the Bill of Rights that have
a far-reaching impact. 175 It should be noted that neither a state of emergency nor a
national state of dis aster allows for violations of human rights. Such a conception is
anathema to a constitutional order premised upon the recognition and protection of
human rights. But even to the extent that both states allow for the limitation of
constitutional rights, 176 the nature of the limitation and the mechanisms available to
address them are different. A state of emergency permits the derogation from rights, in
the sense of a generalised limitation of the operation of the Bill of Rights for the specific
purpose of protecting the constitutional order. A national state of disaster, on the other
hand, permits regulatory restrictions of a kind required to meet the objectives of

hand, permits regulatory restrictions of a kind required to meet the objectives of
combating the effects of a disaster. These are conceptually different mechanisms.

172 Currie and De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) at 816.
173 Id at 817.
174 See the first judgment at [54].
175 Id at [45] and [127].
176 Id at [45].

THERON J
77


[168] There ar e fundamental differences between a state of emergency under
section 37 and a national state of disaster under the DMA. A disaster as defined is not
a state of emergency.177 Whereas a state of emergency may encompass a disaster, it is
clear from section 37 that a state of emergency contemplates something more severe in
magnitude. A disaster is comparatively of a lesser magnitude in that it must only exceed
the ability of those affected by the disaster to cope with its effects using only their own
resources. Section 2(1) makes it clear that the DMA does not apply to an occurrence
falling within the definition of “disaster” in section 1 if, and from the date on which, a
state of emergency is declared in terms of the State of Emergency Act. Section 26(2)
of the DMA requires the National Executive to deal with a national state of disaster
declared in terms of section 27(1) in terms of existing legislation and contingency
arrangements as augmented by regulations or directions made or issued in terms of
section 27(2). The DMA does not permit the Minister to amend primary legislation or
suspend rights granted by such primary legislation. 178 Courts retain the power to
invalidate and remedy any alleged breaches of such rights, including all the rights in the
Bill of Rights.

[169] The threshold requirement for a state of emergency is, by contrast, much higher
than for a national state of disaster. Section 27(1) of the DMA permits the Minister to
declare a national state of disaster if existing legislation and contingency arrangements
do not adequately provide for the National Executive to deal effectively with a disaster
or other special circumstances warrant the declaration. Section 37(1) of the Constitution
provides that a state of emergency may be declared only in terms of an Act of Parliament
and only when two conditions are present: the life of the nation is threatened by war,

and only when two conditions are present: the life of the nation is threatened by war,
invasion, general insurrection, disorder, natural disaster or other public emergency; and
the declaration is necessary to restore peace and order.


177 See above n 16.
178 British American Tobacco above n 21 at para 97.

THERON J
78

[170] The magnitude of the occurrence that justifies the declaration of a state of
emergency must threaten the very life of the nation. It must also be necessary to declare
a state of emergency to restore peace and order. It is not just to assist and protect the
public, provide relief to the public, protect property, prevent and combat disruption or
deal with destructive and other effects of the disaster, as section 27(3) of the DMA
makes clear. The jurisdictional factors that must be present before either one is declared
are fundamentally different.

[171] The declaration of a state of emergency permits the assignment of plenary
legislative powers to the Executive. The declaration of a national state of disaster does
not. Section 37(4) expressly permits emergency legislation that derogates from the
Bill of Rights. This power is strictly circumscribed. The principle that the Executive
may make legislation that cuts across the Bill of Rights is truly exceptional and not
comparable to any delegation of subordinate legislative power under the DMA.

[172] The reason the threshold for the declaration of a state of emergency is so much
higher is because such a declaration permits the state to derogate from the Bill of Rights
in a unique, constitutionally sanctioned manner. This is a point that could be easily
missed, as has happened here. Section 37(4) allows for the derogation from certain
constitutional rights by way of “legislation enacted in consequence of a declaration of
a state of emergency”. Such derogation is only constitutionally permitted to the extent
that—

“(a) the derogation is strictly required by the emergency; and
(b) the legislation—
(i) is consistent with the Republic’s obligations under international law
applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as reasonably
possible after being enacted.”

THERON J
79

[173] Section 37(2)(b) requires a National Assembly resolution for any extension of a
state of emergency beyond 21 days. It is significant, however, that section 37 does not
confer any power on the National Assembly to veto emergency regulations. Such a veto
is only established by sections 3(2)(a) and 4(1)(b)(ii) of the State of Emergency Act.
But it is a legislative addition to section 37. The Constitution does not require such a
veto. This is significant because it means that the DA seeks restri ctions to be imposed
on disaster regulations that go beyond the constitutional restrictions on emergency
regulations.

[174] It is important to explain the interaction and distinction between “limitation” of
constitutional rights (as provided for in section 36 of the Constitution) and “derogation”
from such rights (as provided for in section 37(4) of the Constitution). As is trite, any
right in the Bill of Rights may ordinarily be limited only in the circumstances outlined
in section 36(1) of the Constitution. Any limitation of a constitutional right will, if
challenged in court, have to pass the justification analysis set out in section 36(1), which
has been extensively developed by this Court and the lower courts. Justification under
section 36(1) provides th e state with its only avenue to a constitutionally sanctioned
limitation of rights in the Bill of Rights.

[175] The exception to the general rule is when a state of emergency has been declared
in terms of section 37(1) of the Constitution. In that singular cir cumstance, the state is
provided with an alternative avenue to justify encroachment on constitutional rights, in
other words by showing that such encroachment (called a derogation in section 37) is
strictly required by the emergency.

[176] The wording of section 37(4) places four discrete requirements on the derogation
from rights by legislation enacted. In paragraph (a), the derogation must be strictly

from rights by legislation enacted. In paragraph (a), the derogation must be strictly
required by the emergency. This threshold confers a heightened obligation on
Parliament to ensure that right s are only derogated from as a matter of necessity.
Conjunctively, paragraph (b) requires that even when there is a derogation from rights
by legislation, the legislation must be consistent with South Africa’s international law

THERON J
80

obligations, conform to sub section (5) and be accessible to the public by way of
publication in the Gazette. Compared with section 36(1), which requires limitations to
be “reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom, tak ing into account all relevant factors”, and placing a
bar on any limitation inconsistent with section 36(1), there is clearly a heightened
standard on the state to justify limitations in the ordinary course.

[177] Thus, during a state of emergency, a limitation of constitutional rights that would
ordinarily be unjustifiable under section 36(1) could still pass constitutional muster if
the state can show that such derogation is strictly required by the emergency (and the
other secondary requirements of section 37(4) are met).

[178] The contention that the requirements under section 37(4) provide a more difficult
burden for the state to meet than the requirements under section 36 of the Constitution,
cannot be accepted. This contention is unsound for two important reasons.

[179] First, the enquiries are highly dependent on the particular impugned legislation
and how it relates to the particular facts of the matter. In some instances, it might well
be easier to show that a derogation is strictly required by an emergency, tha n to justify
it using the factors set out in section 36(1). Section 37(4) provides a clear standard
against which to measure the derogation, while a section 36(1) enquiry is a more
multifaceted enquiry, the outcome of which is more difficult to reliably p redict. That
is not to say section 37(4) provides a lower threshold than section 36(1) – it just does
not necessarily provide a higher one.

[180] But more importantly, even if the section 37(4) requirements on their own
provide a higher threshold for the state to meet than the section 36 analysis, this does
not mean that the state has less leeway in a state of emergency than under normal

not mean that the state has less leeway in a state of emergency than under normal
circumstances. This is almost self-evident – the entire purpose of section 37 is to allow
the state to limit rights in a man ner that it would not be able to limit under the normal

THERON J
81

ordinary constitutional order.179 This is done by providing the state with an additional
“ground of justification” to rely on, i.e. that the emergency strictly requires such
derogation.

[181] This is the fundamental difference between a national state of disaster and a state
of emergency. Under a national state of disaster, the state will be required to justify
each and every limitation of a constitutional right in terms of section 36(1), failing
which such limitation would be struck down as being unconstitutional. This of course
happened in numerous cases under the COVID-19 state of disaster.180 Under a state of
emergency on the other hand, even if legislation failed the section 36 enquiry, the state
could still rely on section 37(4). Section 37(4) is simply not available to the state under
section 27 of the DMA.

[182] I accept that there might be similarities between the measures implemented by
the state in states of emergency and measures implemented by the state in states of
disaster, and that measures under either state are likely to seek to limit constitutional
rights. But this is an aspect that they share with many statutes that delegate regulation-
making power to the Executive.181 In Van Rooyen, this Court held:


179 Fritz above n 171 at 61-21.
180 See for example Minister of Co-operative Governance and Traditional Affairs v De Beer [2021] ZASCA 95;
[2021] 3 All SA 723 (SCA); British America n Tobacco above n 21; Esau above n 49; and Helen Suzman
Foundation v Speaker of the National Assembly, unreported judgment of the High Court of South Africa, Gauteng
Division, Pretoria, Case No 32858/2020 (5 October 2020) (HSF). That not all of the challenges in this regard
were successful is no indictment of the mechanisms provided by section 36(1) of the Constitution, or an indication
that the threshold is too easy to meet. Section 36(1) of course allows the possibility that n ot all limitations of

rights are unconstitutional. The threshold it sets is, by definition, the threshold calibrated by the Constitution.
181 There are numerous examples of regulation -making power that could, conceptually, be used to limit
constitutional rights. For example section 44(1)(aA) of the National Environmental Management Act 107 of 1998
empowers the relevant Minister to “make regulations . . . prohibiting, restricting or controlling activities which
are likely to have a detrimental effect on the environment”. Section 31(1)(d) of the Animal Diseases Act 35 of
1984 empowers the relevant Minister to “make regulations . . . prescribing, in general, any matter which the
Minister deems expedient or necessary for the achievement of the purposes of this Act, the generality of this
paragraph not being restricted by the provisions of the other paragraphs of this subsection”. Section 91(1) of the
Defence Act 42 of 2002 allows the President, during a state of national defence, to “make such regulations as ar e
necessary or expedient to deal with any circumstances which have arisen or are likely to arise as a result of the
state of national defence”. I do not venture to comment on the constitutionality of any such provisions or
regulations, but cite these exam ples merely to illustrate that regulatory provisions often entail possible or even
probable limitation of rights.

THERON J
82

“Any power vested in a functionary by the law (or indeed by the Constitution itself) is
capable of being abused. That possibility has no bearing on the constitutionality of the
law concerned. The exercise of the power is subject to constitutional control and should
the power be abused the remedy lies there and not in invalidating the empowering
statute.”182 (Footnote omitted.)

[183] There remains a qualitative difference in that during a national state of disaster,
all such measures are subject to a higher standard – the unencumbered limits set by the
Bill of Rights. A state of emergency is not characterised only by possible far -reaching
limitations, but also clothes such limitations with constitutional protection not available
under normal circumstances.

[184] A declaration of a national state of disaster does not suspend the constitutional
order nor dilute it. The constitutional order and all the protections that are afforded,
including by the Bill of Rights, remain operational and effective during a national state
of disaster. A national state of disaster permits the exercise of delegated power to
promulgate subordinate legislation. A state of emergency, on the other hand, permits
the Executive to cut across all existing laws and the Bill of Rights.

Judicial review
[185] A declaration of a national state of disaster does not relieve the Executive or the
Minister of any of the limitations imposed by the Constitution generally and the
Bill of Rights in particular. The Court in HSF highlighted this constraint. 183 Any

182 Van Rooyen above n 69 at para 37.
183 HSF above n 180 at paras 69-70:
“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 blanche
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 Constitut ion 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.
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.”

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limitation of a fundamental right passes constitutional muster only if it satisfies the
requirements for limitation under section 36 of the Constitution. The
Supreme Court of Appeal reiterated what it had already emphasised in British American
Tobacco:

“At the outset, the approach to a justification analysis under section 36 of the
Constitution in a time of national crisis such the COVID -19 pandemic, as stated in
Esau, bears repetition: ‘[T]he Executive has no free hand to act as it pleases, and all of
the measures it adopts in order to meet the exigencies that the nation faces must be
rooted in law and comply with the Constitution.’”184

[186] Any limitation of rights renders the Minister’s regulations subject to judicial
review. It would be unsound for t his Court to reject judicial review as an effective
remedy in matters such as the one under consideration. 185 The first judgment does so
and points to the delay occasioned by judicial review and the fact that, even where
review proceedings are brought on an urgent basis, the appellate process might further
delay finality of review proceedings. 186 The first judgment also points to the fact that
applicants in review proceedings are confronted with the Plascon-Evans rule with
regard to factual disputes. 187 But these aspects are not unique to challenges to alleged
rights infringements under section 27 of the DMA – they are features of any application
brought to challenge alleged constitutional rights infringements. I see no reason why
judicial review to challenge possible infringements under section 27 of the DMA must
be held to be ineffective, where it is an effective remedy in other cases of limitations of
constitutional rights. Reliance on urgency also offers no distinguishing factor in this
case – alleged constitutional infringements often need to be urgently confronted, and
our courts have developed rules regulating urgent proceedings that cater for such

our courts have developed rules regulating urgent proceedings that cater for such
instances. The Plascon-Evans rule is also a feature of all such applications. Interim
relief, which can only be appealed in limited circumstances, is also an option.

184 SCA judgment above n 20 at para 35.
185 See the first judgment at [120] to [123].
186 Id at [120] to [121].
187 Id at [120].

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[187] More fundamentally, to dismiss judicial review of legislation or subordinate
legislation for constitutional compliance as an ineffective remedy as compared to an
override power by Parliament, seems to me to mischaracterise the roles assigned to the
Legislature and the Judiciary by the Constitution. The separation of powers assigns to
the courts the responsibility to determine whether legislation or executive conduct
complies with the Constitutio n. This is why judicial review remains such a powerful
mechanism in curbing constitutional violations.

[188] Another reason given for the lack of effectiveness of judicial review as a remedy
by the first judgment is that, while review for unlawfulness might ad dress instances
where the Minister acts without authorisation, it does not address whether the Minister
should have the power in the first place.188 This reasoning is misplaced. Judicial review
is not confined to challenges to the lawfulness of the impugne d regulations – it can be
aimed at unjustified limitations of constitutional rights.189 It is true that judicial review
of any specific regulation could not be used to call into question whether the Minister
should have the regulation-making power in the first place. But that is not the context
in which judicial review was raised by the respondents in this case. The respondents
argue, and I agree with them, that the existence of judicial review as an effective remedy
is relevant to whether the Constitution requires Parliament to reserve the function of
review for itself, in the form of a veto power. And in this case, judicial review remains
an effective remedy to challenge subordinate legislation that has been validly enacted,
where it unjustifiably limits constitutional rights. Unlawfulness also remains a powerful
ground of review when a court is asked to determine whether the jurisdictional facts for
a declaration of a national state of disaster are met. That is an objective enquiry, which

a declaration of a national state of disaster are met. That is an objective enquiry, which
precedes any lawful exercise of the Minister’s regulation-making powers.


188 Id at [123].
189 New National Party of South Africa v Government of the Republic of South Africa [1999] ZACC 5; 1999 (3)
SA 191 (CC); 1999 (5) BCLR 489 (CC) at para 24.

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Is section 27 overbroad by not affording Parliament a veto?
[189] Section 42(3) of the Constitution imposes the National Assembly’s oversight
duty:

“The National Assembly is elected to represent the p eople and to ensure government
by the people under the Constitution. It does this by choosing the President, by
providing a national forum for public consideration of issues, by passing legislation
and by scrutinizing and overseeing executive action.” (Emphasis added.)

[190] Section 55(2) of the Constitution gives content to it as follows:

“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.”

[191] This Court has held that the delegation of subordinate legislative powers is not
contrary to our constituti onal scheme, but in fact necessary to give efficacy to the
primary legislative power of Parliament. 190 In this matter, we are not dealing with a
general complaint about overbroad delegation of legislative powers. The DA in fact
accepts that the Executive r equires broad powers to deal with the unforeseen and
possibly widespread consequences of a disaster. The DA’s complaint is that
section 27’s broad delegation of subordinate legislative power is coupled with the lack
of appropriate oversight powers being r eserved for Parliament. The first judgment
accordingly characterises the “real question” in this case as whether the mechanisms
available to Parliament or the National Assembly to oversee and scrutinise the

190 Executive Council above n 58 at para 62.

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Minister’s exercise of their powers under sectio n 27 represent “effective or adequate
oversight mechanisms”.191

[192] Section 55(2) of the Constitution does not prescribe to the National Assembly
what oversight mechanisms to employ. It leaves it entirely within the discretion of the
National Assembly, within constitutional parameters. 192 It certainly does not require
the National Assembly to include specific mechanisms in individual pieces of
legislation. We should not lose sight of this Court’s jurisprudence to the effect that it is
for the National Assembly to determine the form that its mechanisms of oversight
take.193

[193] In EFF I, this Court explained:

“[T]he Constitution neither gives details on how the National Assembly is to discharge
the duty to hold the executive accountable nor are the mechanisms for doing so outlined
or a hint given as to their nature and operation. To determine, whether the
National Assembly has fulfilled or breached its obligation, will therefore entail a
resolution of very crucial political issues. And it is an exercise that trench es on
sensitive areas of separation of powers. It could at times border on second -guessing
the National Assembly’s constitutional power or discretion.”194

[194] This Court further held:

“Both sections 42(3) and 55(2) do not define the strictures within which th e
National Assembly is to operate in its endeavour to fulfil its obligations. It has been
given the leeway to determine how best to carry out its constitutional mandate.”195

191 See the first judgment at [80]:
“The real question, then, is whether the power to oversee and scrutinise the powers of the
Minister can be said to amount to the necessary constraints to provide for effective or adequate
oversight mechanisms for the wide-ranging powers granted to the Minister in section 27.”
192 EFF I above n 71 at paras 43, 87, 90 and 93.
193 Id at para 87.
194 Id at para 43.

192 EFF I above n 71 at paras 43, 87, 90 and 93.
193 Id at para 87.
194 Id at para 43.
195 Id at para 87.

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[195] As quoted above, it held further:

“It falls outside the parameters of judicial au thority to prescribe to the
National Assembly how to scrutinise executive action, what mechanisms to establish
and which mandate to give it, 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.” 196 (Emphasis
added.)

[196] It is clear from EFF I that a judicial enquiry is limited to determining whether
what the National Assembly does amounts to a fulfilment of its constitutional
obligations. It is impermissible for courts to prescribe to the National Assembly how
to perform this function.

[197] It mu st be noted that there is no constitutional requirement for the DMA to
specifically provide for parliamentary oversight. Parliamentary oversight is a normal
and obligatory component of our constitutional framework in sections 42(3) and 55(2)
of the Consti tution. It is not exercised by sheer benevolence. As this Court said in
United Democratic Movement , “[t]hose who represent the people in Parliament have
thus been given the constitutional responsibility of ensuring that Members of the
Executive honour their obligations to the people”.197

[198] The minority in the Supreme Court of Appeal was incorrect when it suggested
that the oversight actually exercised during the COVID -19 pandemic occurred merely
out of the goodwill of Parliament. It overlooked that Parliame nt was constitutionally

196 Id at para 93.

196 Id at para 93.
197 United Democratic Movement above n 89 at para 37.

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obliged to exercise oversight over the Executive, as it did. The minority said the
following in this regard:

“That may be so, and it is commendable. But it is not an answer to the question of
whether section 27 is constitutionally valid. As mentioned, the constitutional validity
of section 27(2) is an objective enquiry. It is not dependent on whether the
engagements held in respect of a particular disaster were adequate or not. The fact is
that those engagements are neither req uired by the DMA nor are there mandatory
legislative mechanisms in place for them to occur. They occurred out of the goodwill
of Parliament and its sense of duty.”198

[199] The DMA does not interfere with this responsibility of Parliament to exercise
oversight o ver the Executive. It also does not authorise a state of emergency that
suspends the constitutional order, including the oversight obligations of Parliament.

[200] The National Assembly’s powers of oversight of the Executive entitle and oblige
it to hold the Executive to the fulfilment of their constitutional and statutory duties. This
Court has made it plain again and again. 199 It said for instance that the
National Assembly was obliged to “ensure that constitutional and statutory obligations
are properly exec uted”;200 “to hold the President accountable by facilitating and
ensuring compliance with the decision of the Public Protector”;201 and to ensure that the
President “complies with the remedial action taken against him”.202

[201] It follows that the National Assembly’ s oversight powers do not entitle it,
without more, to veto or overturn any decision taken by the Executive in the lawful
exercise of its powers. This Court made this clear in EFF I in its condemnation of a
decision of the National Assembly to overturn a report of the Public Protector. This

198 SCA judgment above n 20 at para 164.
199 EFF I above n 71 at paras 22, 97 and 104.
200 Id at para 22.

199 EFF I above n 71 at paras 22, 97 and 104.
200 Id at para 22.
201 Id at para 97.
202 Id at para 104.

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Court described the resolution as an attempt by the National Assembly to take the law
into its own hands, resort to self-help and flout its obligations.203

[202] The National Assembly has in fact established such mechanisms, as detailed in
the first judgment. 204 The first judgment accepts that these mechanisms were in fact
extensively used by Parliament during the COVID -19 pandemic and it did so in terms
of mechanisms it determined or established in terms of sections 55(2) and 57 of the
Constitution.205 As we held in EFF I , it is not for this Court to second -guess the
mechanisms that the National Assembly has established in this regard.

[203] The first judgment takes issue with the manner in which some of the oversight
mechanisms were used during the COVID-19 pandemic.206 It should be borne in mind
that, in this matter, we are not asked to determine whether the National Assembly “in
substance and in reality” failed to exercise its oversight role. 207 If that had been the
case, the challen ge would have been directed at the National Assembly and not
section 27 of the DMA. In this matter, this Court is called upon to decide whether
section 27 of the DMA generally (and not as it relates specifically to the COVID -19
disaster) does not provide for the constitutionally required oversight mechanisms.

[204] The DA did not challenge the oversight mechanisms determined by the
National Assembly in terms of sections 55(2) and 57 of the Constitution as
unconstitutional because they do not contain a veto power or power of prior approval
by Parliament. The challenge was that section 27 of the DMA is unconstitutional
because it does not contain oversight mechanisms, which include such a veto power or
power of prior approval. The Constitution does not require that effective oversight by

203 Id at paras 98-9.
204 See the first judgment at [82].
205 Id at [82] to [83].
206 Id at [85].
207 EFF I above n 71 at para 93.

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Parliament must include a veto power or a power of prior approval in respect of
administrative law-making powers.

[205] The first judgment concludes tha t the mechanisms established by the
National Assembly are not sufficient, and that, in order for the mechanisms to be
effective, any regulations made by the Minister under section 27 would need to be
subject to the National Assembly’s retrospective approva l (what is in effect a
parliamentary veto power). 208 It concludes that the constraints in section 27 “are not
effective or adequate because none of them entitle Parliament to overrule the
Executive”.209

[206] In my view, this conclusion misses a crucial step. The question is not whether a
parliamentary veto power is desirable, or whether it would be a more effective oversight
mechanism than those already established by the National Assembly. The antecedent
question this Court is required to answer is whether the Constitution ever requires
Parliament to reserve a power of final approval over subordinate legislation for itself.

[207] There is nothing in the Constitution that points to a requirement that the
National Assembly has a veto power over subordinate legislation or executive action.
Where the Constitution requires the National Assembly to have a veto power, it codifies
such a power expressly (for example in section 37(2)(b)).210 This is understandable, as
a veto power, in making executive power directly subject to parliamentary approval, is
a drastic reversal of the constitutionally established separation of powers. 211

[208] There are several important factors, on the other hand, that point away from an
obligation on the Legislature to expressly provide for a veto power f or itself. First, as

208 See the first judgment at [86], [96] and [126].
209 Id at [126].
210 The veto power in section 37(2)(b) of the Constitution is of course a veto power of the declaration of a state

of emergency, and not over legislation or regulations enacted pursuant to a state of emergency.
211 See for example this Court’s comment in EFF I above n 71 at paras 98-9, in relation to Parliament’s usurpation
of the Public Protector’s constitutionally ordained role.

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per section 85(2)(a) of the Constitution, the President (along with the Cabinet) exercises
the executive authority by, inter alia, “implementing national legislation except where
the Constitution or an Act of Parliament provides otherwise”. A veto power would give
Parliament the power to directly interfere with the implementation of the DMA, which,
as per section 85(2)(a), is the realm of the Executive, unless expressly provided for in
the Constitution or national legislation. A veto power goes beyond mere “oversight” –
it effectively takes control over the executive function.

[209] Second, the Constitution expressly provides Parliament with a discretionary
power to enact a veto power for itself over subordinate legislation. Section 101(4) of
the Constitution allows Parliament to enact legislation which would require subordinate
legislation to be tabled in and approved by Parliament. Section 101(4) is set i n very
clearly permissive language – Parliament may enact such legislation, but it is not
required to do so. In my view, the fact that this power is discretionary points to the fact
that the Constitution, including section 55(2) thereof, does not envision Parliament’s
oversight role to necessarily take the form of a veto power over subordinate legislation.

[210] Third, Parliament’s legislative powers allow it to amend the DMA itself in order
to either place additional restrictions on the Minister’s powers, or to reserve for itself a
veto power over declarations of a national state of disaster, and the subordinate
legislation pursuant to such a declaration. Parliament’s legislative powers are
considerable – they allow Parliament to decide, within the confines of the Constitution,
what mandate is to be given to the Executive, what powers the Executive is imbued
with and what restrictions are to be placed on the exercise of that power. Parliament is
given an oversight role over the Executive, but this role could never have been intended

given an oversight role over the Executive, but this role could never have been intended
to require Parliament to take up the reins of the Executive itself.

[211] Fourth, the Constitution does not require a veto power even in relation to the
most far-reaching exercise of executive power under a state of emergency. Section 37
permits the delegation of legislative power far more dramatic and far-reaching than the
DMA. Section 37(2) requires a National Assembly resolution to extend a state of

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emergency beyond its initial life of 21 days. It does so precisely because, unlike a
national state of disaster, a state of emergency may suspend the protection afforded in
the Bill of Rights. Section 37(4) of the Constitution expressly permits Parliament to
enact legislation which suspends the Bill of Rights when a state of emergency is
declared. The only provisions of the Bill of Rights which may not be suspended under
a state of emergency are those listed in the table of non -derogable rights. The
Constitution does not require the National Assembly to be vested with a power to veto
subordinate legislation made by the Executive during a state of emergency. The DA’s
claim for the National Assembly to have a veto power in a national state of disaster
demands more than section 37 requires for a state of emergency.

[212] If Parliament is required to include a veto power for itself in order to effectively
oversee the powers it delegates to the Executive, it seems to me to endanger all
legislation that delegates regulation -making powers to the Executive. Many Acts of
Parliament confer broad regul ation-making powers on Ministers and other
functionaries, covering all manner of areas affecting the public and, in some cases,
limiting rights, for example in health, immigration, environmental management and
transport legislation. These delegations would, if the DA’s reasoning were correct and
were carried forward, potentially extend to various pieces of delegated legislation
conferring wide regulatory powers on the Executive. I can find no principle in the first
judgment that provides any guidance to P arliament on when a veto power will be
required to be included in a statute. The first judgment in fact acknowledges this, stating
that it is not “desirable to leave everyone guessing as to whether, in relation to a
particular statute, this override power is or is not appropriate”. 212 It seems to me that

particular statute, this override power is or is not appropriate”. 212 It seems to me that
the first judgment does exactly that – it leaves one uncertain when such a veto power is
constitutionally required.


212 See the first judgment at [131].

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[213] Nu Africa 213 does not support the conclusion that Parliament is required to
reserve a veto power for itself in the DMA. Nu Africa was firstly concerned with the
delegation by Parliament of plenary powers and not regulatory powers. This distinction
is important because plenary powers would allow the Executive to directly interfere or
countermand previous acts of Parliament. Chaskalson P, in Executive Council ,
explained this distinction as follows:

“I pointed out why it is a necessary implication of the Constitution that Parliament
should have the power to delegate subordinate legislative powers to the Executive. To
do so is not inconsistent with the Constitution; on the contrary it is necessary to give
efficacy to the primary legislative power that Parliament enjoys. But to delegate to the
Executive the power to amend or repeal Acts of Parliament is quite different. To hold
that such power exists by necessary implication from the terms of the Constitution
could be subversive of the “manner and form” provisions of sections 59, 60 and 61.”214

[214] There is nothing in the DMA to suggest that the regul ations made under it may
override or amend primary legislation. I agree with the Supreme Court of Appeal in
British American Tobacco that section 27 of the DMA “do[es] not assign to the Minister
plenary legislative power: it does not grant the Minister th e power to pass, amend or
repeal an Act of Parliament”. 215 What is more, sections 27(2) and (3) provide a “clear
and binding framework for the exercise of the powers”.216 Regulations under the DMA
are restrained by the limits set by primary legislation.

[215] Whether the regulations enacted during the COVID -19 pandemic attempted to
override or amend primary legislation is not the issue with which we are seized in this
case. It suffices to say that any regulations that attempted to amend or repeal primary
legislation would be susceptible to judicial review on those grounds. We are instead

legislation would be susceptible to judicial review on those grounds. We are instead
concerned with section 27 of the DMA and that section delegates power to make

213 Nu Africa above n 62.
214 Executive Council above n 58 at para 62.
215 British American Tobacco above n 21 at para 97.
216 Id quoting Smit v Minister of Justice and Correctional Services [2020] ZACC 29; 2021 (1) SACR 482 (CC);
2021 (3) BCLR 219 (CC) at para 36.

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subordinate legislation within the framework set by the DMA, not plenary power. It is
thus distinguishable from Nu Africa.

[216] The first judgment distinguishes between powers “for making regulations for the
purpose of the administrative implementation of an Act of Parliament and the delegation
of legislative power for the purpose of making substantive laws”.217 With regard to the
making of regulations, where implementation ends and substantive law begins is at best
a fluid distinction and at worst a distinction without a difference. Regulation -making
often requires administrators to “make” substantive law. As Chaskalson P stated in
Executive Council, it is perfectly permissible in our constitutional scheme for
Parliament to delegate such powers.218

[217] There is however another reason Nu Africa is unhelpful for the proposition that
Parliament is in some circumstances constitutionally required to enact a veto power for
itself. In Nu Africa, Parliament had in fact enacted such a veto power and the Court
found the veto power to be one of the reasons why the plenary power elsewhere
delegated was not constitutionally impermissible. It is qualitatively different, on the
one hand to say that a veto power may save plenary powers from unconstitutionality,
where Parliament has enacted for itself such a veto power and on the other hand to find
that the Constitution requires Parliament to do so. Nu Africa is not authority for the
latter proposition.

[218] I should add that none of the above arguments mean that Parliament could not
include a veto power in legislation, including the DMA, if it wished to do so. It is not
my view th at a veto power could not be an example of an effective oversight
mechanism, but merely that (a) the Constitution does not prescribe such a veto power
and (b) it is up to Parliament to decide what form its oversight mechanisms take. The
fact that a veto p ower has been included in the State of Emergency Act, and other

fact that a veto p ower has been included in the State of Emergency Act, and other

217 See the first judgment at [134].
218 Executive Council above n 58 at paras 51 and 62.

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legislation such as the PAJA and the Protected Disclosures Act, takes the DA’s case no
further – in those cases Parliament exercised its legislative powers to enact a veto power
as an oversight mechanism. The power was not mandated by either the Constitution or
the courts.

[219] The DA’s argument relies heavily on the supposed similarity between a national
state of disaster and a state of emergency to find that the oversight mechanisms available
to Parliament in a state of emergency should also be available to it under a national state
of disaster. As shown above however, there is an important qualitative difference
between a state of emergency (and the legislation that can be enacted pursuant to o ne)
and a national state of disaster (and any other non -state of emergency legislation). A
state of emergency is a unique constitutional creature, which allows singular derogation
from constitutional rights and conversely requires singular oversight mechanisms.

[220] The first judgment places reliance on section 17 of the Interpretation Act for the
proposition that “draft regulations or rules must first be tabled in Parliament prior to
publication in the Gazette ”.219 In my view, this reliance is unfounded a nd does not
support the first judgment’s conclusions. Section 17 of the Interpretation Act states:

“When the President, a Minister or the Premier or a member of the Executive Council
of a province is by any law authorized to make rules or regulations for any purpose in
such law stated, notwithstanding the provisions of any law to the contrary, a list of the
proclamations, government notices and provincial notices under which such rules or
regulations were published in the Gazette during the period covered in the list, stating
in each case the number, date and title of the proclamation, government notice or
provincial notice and the number and date of the Gazette in which it was published,

provincial notice and the number and date of the Gazette in which it was published,
shall be submitted to Parliament or the provincial legislature conce rned, as the case
may be, within fourteen days after the publication of the rules or regulations in the
Gazette.”


219 See the first judgment at [88].

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[221] Three features of this provision point to why reliance on the Interpretation Act
to conclude that Parliament should be required to approve regulations is misplaced.
First, the section contains no mention of any approval of rules and regulations, but
merely that they should be submitted to Parliament. Second, the section does not
require the rules and regulations themselves to be tabled, but only that a list of the
proclamations including the number, date and title of each proclamation be submitted
to Parliament. It can hardly be required of Parliament to approve or veto regulations
where it is not a requirement that the regulations themselves be tabled there. Third, the
rules and regulations have to be tabled 14 days after publication in the Gazette. It would
be incongruous to conclude that the section requires approval of such regulations by
Parliament if such approval is always to happen after their publication. The Guide to
Tabling referred to by the first judgment220 takes this argument no further, as it mandates
rules and regulations to be tabled prior to publication, only where such prior tabling is
required by other legislation (for example, regulations under the PAJA).

[222] For these reasons, I find that section 27 of the DMA is not unconstitutional fo r
either creating a simulated state of emergency, or for not providing the
National Assembly with specific oversight power. There is also no impermissible
delegation of legislative power by Parliament to the Minister, as contended by the DA.

[223] Although not necessary for the purpose of this judgment, I pause to make a few
remarks about remedy. The reading-in remedy is inappropriate for a number of reasons.
If the remedy is intended to cure the complaint about lack of effective oversight,
appropriate relief should only be aimed at curing that which is unconstitutional about
section 27. This must be done by creating parliamentary oversight over the Minister’s

section 27. This must be done by creating parliamentary oversight over the Minister’s
legislative powers and no more. Such oversight does not require veto powers by
Parliament. If the remedy is intended to cure the complaint about failure to have
constraints or guidelines for the exercise of the delegated powers, the remedy sought
must be aimed at remedying this complaint. In this regard, Parliament remains the

220 Id at n 90. See also Guide to Tabling above n 90 at para 6.8.3.

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appropriate body to deci de on the appropriate cure because it has a range of rational
options with which to cure the problem. The order sought would be an intrusion into
the legislative authority of Parliament and would breach the separation of powers.221

[224] This Court held in National Coalition222 and confirmed in Nandutu223 that it is
not appropriate to employ the remedy of reading -in, unless the court can define with
sufficient precision how the unconstitutional law has to be amended in order to comply
with the Constitution. It also held in Dawood224 and reiterated in Nandutu225 that where
there is a range of legislative possibilities by which the unconstitutional law could be
cured, the court should leave it to the legislature to do so.

[225] The first judgment argues that it is not prescribi ng “how Parliament should
ensure that it reserves to itself the final decision -making power in respect of disaster
regulations”.226 It says that its reading-in is simply a temporary remedy. But, in terms
of EFF I , even to say that Parliament must reserve t he final decision or power to
override for itself, in whatever manner it deems fit, is overstepping the constitutional
bounds of the separation of powers. It is prescribing to Parliament what mechanism
must be implemented, and this is a step this Court should not take absent clear guidance
from the Constitution that an override power is necessary. The Constitution contains
no such guidance, as discussed above.


221 I note that there have only been two national states of disaster which were non -environmental, being the
COVID-19 pandemic and the brief national state of disaster relating to load-shedding. Even if this Court were to
suspend a declaration of invalidity to allow Parliament time to find a sufficient alternative mechanism of oversight,
it is unlikely that a situation of comparable mag nitude to the COVID -19 pandemic and out of the ordinary

operation of the DMA would arise. This is a further reason why there is no need for a reading -in.
222 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1
(CC); 2000 (2) BCLR 39 (CC) at para 75.
223 Nandutu v Minister of Home Affairs [2019] ZACC 24; 2019 (5) SA 325 (CC); 2019 (8) BCLR 938 (CC) at
para 86.
224 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Th omas v Minister of Home Affairs
[2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) at paras 63 -4.
225 Nandutu above n 223 at para 89.
226 See the first judgment at [96].

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[226] Even if this Court were to find that section 27 is unconstitutional, it should be
left to Parliament to cure the defect because the cure is not obvious. It should be left to
Parliament to choose the appropriate cure. Parliament may consider whether it is
feasible to narrow the powers vested in the Minister by circumscribing with greater
precision what a national disaster is; when a national state of disaster may be declared;
the requirements with which the disaster regulations must comply; and the requirements
for any extension of the national state of disaster. This Court emphasised in EFF I that
it is for the National Assembly and not the courts to determine how to perform its
functions of oversight over the Executive.227

[227] In conclusion, the appeal must be dismissed. I am however satisfied that the DA
enjoys protection against costs in terms of Biowatch,228 and make no order as to costs.

Order
[228] The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.

227 EFF I above n 71 at para 93.
228 Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR
1014 (CC) at para 24.

99

For the Applicant:



For the First and Fourth Respondents:




For the Second and Third Respondents:

G Marcus SC and P Olivier instructed
by Minde Schapiro and Smith
Incorporated

W Trengove SC, A Hassim SC,
P Maharaj Pillay and T Moshodi
instructed by Office of the State
Attorney, Pretoria

N Maenetje SC and A Nase instructed
by Office of the State Attorney,
Cape Town