The intended draft Bill proposes to place constraints on the wide-ranging powers conferred on the Minister of Cooperative Governance and Traditional Affairs under the Disaster Management Act (“DMA”), and to provide for parliamentary oversight over the exercise of the Minister’s powers to declare, and extend, a state of disaster and to make subordinate legislation.
In July 2020, the HSF approached the Pretoria High Court seeking an order declaring that the Executive and Parliament have failed in their constitutional obligation to initiate, prepare and pass legislation governing the state’s response to COVID-19 and directing them to enact such legislation. On 7 October 2020, the Full Court in the Pretoria High Court handed down a judgment and order dismissing the HSF’s application. The HSF has taken the judgment and order of the Full Court on appeal before the Supreme Court of Appeal.
The HSF contends that properly interpreted, the DMA is a short-term, stop-gap mechanism empowering the state’s response to a national disaster only until such time that more concrete and fit-for-purpose legislation is initiated, prepared and passed.
The HSF welcomes the introduction of the draft Bill. The HSF sees the draft Bill as an opportunity to further clarify that the DMA is not intended to indefinitely delegate legislative powers to the Minister. It is the HSF’s hope that the amendments to the DMA recommended herein will assist to clarify Parliament’s law-making and oversight obligations in respect of disasters that threaten harm to the Republic.
In summary, the HSF’s comments are:
- The definition of disaster in section 1 be amended to clarify that an event only continues to qualify as a “disaster” for so long as time-sensitive reasons exist that frustrate the making of new measures through regular legislative and executive processes;
- The time period from the date of declaration after which a national state of disaster lapses be shortened to more appropriately reflect that the DMA is intended as a temporary stop-gap mechanism;
- That constraints be placed on the Minister’s power to extend a national state of disaster;
- The period of extension be shortened to cohere with the shorter period for the initial state of disaster;
- All regulations should be tabled before the National Assembly as soon as possible; and
- The National Assembly must be given the power to decide, by resolution, to invalidate or amend any such regulation
To see the HSF’s full submission to Parliament, click here.
To see the HSF’s founding affidavit in the High Court, click here.
Media Enquires
- Catherine Kruyer
catherine@hsf.org.za - Chelsea Ramsden
chelsea@hsf.org.za
