High court to hear FF+ challenge to Disaster Management Act

The high court in Pretoria will on Wednesday hear the Freedom Front Plus (FF+) challenge to the constitutionality of the Disaster Management Act and the validity of the decision to declare a national state of disaster.

This will be the first court challenge to the constitutionality of the legislation, which is being used as the framework for the Covid-19 lockdown and which resulted in the creation of the national coronavirus command council (NCCC).

The DA is also challenging the constitutionality of the Disaster Management Act but directly to the Constitutional Court. The top court has indicated it will consider arguments in the DA’s application for direct access.

In a bid to curb the spread of the coronavirus, the government declared a national state of disaster in March, which resulted in a myriad regulations being put in place. Earlier in June, the cabinet approved the extension of the national state of disaster by another month from June 15 to July 15.

Opposition parties have criticised the lack of oversight or accountability of the command council, chaired by President Cyril Ramaphosa.

If the challenges to the Disaster Management Act are successful, the national state of disaster declared by the government, and the attendant regulations, could be declared unconstitutional.

The high court in Pretoria has already found, in a separate matter, that level 4 and 3 regulations are invalid and unconstitutional. The government is, however, appealing this judgment. This case did not deal with the constitutionality of the Disaster Management Act but with the regulations gazetted by the government.

The FF+ is arguing that sections of the Disaster Management Act are inconsistent with the constitution.

It wants the court to declare the act unconstitutional and invalid because it is not subject to oversight by the National Assembly or judicial oversight.

The party’s leader, Pieter Groenewald, argued in court papers that the purpose of the restrictions had been achieved and they were no longer commensurate with the Covid-19 risk, meaning the failure to lift the lockdown was arbitrary and irrational.

He said the government had failed to take relevant facts and evidence into consideration and had taken irrelevant considerations into consideration.

The FF+ also argues that the measures put in place when the national state of disaster was declared constitute a state of emergency, which is subject to National Assembly oversight.

The party alleges that the government is abusing its powers by invoking the Disaster Management Act instead of the State of Emergency Act, seeing that a state of emergency may only be implemented for three weeks and all regulations require parliament’s approval and oversight, which entails the involvement of all represented political parties.