Parliament, Wednesday 8 July 2020 – Parliament’s Presiding Officers, National Assembly Speaker Ms Thandi Modise and National Council of Provinces Chairperson Mr Amos Masondo, have noted the judgment of the North Gauteng Division of the High Court in the case filed by the Freedom Front Plus (FF Plus).

Among other things, the FF Plus sought to challenge the constitutionality of the Disaster Management Act and to review the decision of the Minister of Co-operative Governance and Traditional Affairs (COGTA) to declare the national state of disaster in response to the COVID-19 pandemic. The Speaker and the Chairperson were cited as the third and the fourth respondents. The first and the second respondents were the President and the Minister of COGTA.

The Speaker and the Chairperson filed a notice to abide by the decision of the Court. They filed an explanatory affidavit to assist the Court regarding certain factual issues that fall within their knowledge.

In their affidavit, Parliament’s Presiding Officers refuted FF Plus claim that there had been no parliamentary oversight over how the government is implementing the Disaster Management Act. The FF Plus argued that the Disaster Management Act and the declaration of the national state of disaster to deal with COVID-19 are unconstitutional as the Act does not have important safeguards, similar to those in the State of Emergency, such as, parliamentary oversight.

The Presiding Officers concur with the Court’s clarification that the state of emergency is distinguishable from the national state of disaster, contrary to the contention of the FF Plus. Unlike the state of emergency, the national state of disaster does not require a derogation from the Bill of Rights and, therefore, does not require special provisions for oversight by Parliament.

Parliament continued to exercise its oversight responsibilities over the Executive during the national state of disaster, as required by sections 42, 55 and 92 of the Constitution. These constitutional responsibilities were not rendered inoperable by the declaration of the national state of disaster.

The Presiding Officers’ explanatory affidavit illustrated that, during the current national state of disaster, parliamentary oversight has been exercised through portfolio committees of the National Assembly and select committees of the National Council of Provinces. The affidavit sets out details of the engagements that occurred between these legislative structures and members of the Executive.

The Court found, among other things, that the FF Plus challenge on the Disaster Management Act was founded on a misconception of the state of emergency and the national state of disaster and, therefore, was fundamentally flawed.


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