- The Constitutional Court has dismissed yet another application for direct access in a case related to the Covid-19 lockdown.
- The court dismissed an application by the Helen Suzman Foundation.
- The non-governmental organisation said they were studying the judgment.
The Constitutional Court has again dismissed an application for direct access in a challenge relating to the Covid-19 lockdown.
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On Friday, the apex court dismissed an application by the Helen Suzman Foundation (HSF), which sought an urgent order for the president, the Cabinet and the National Assembly to fulfil a constitutional duty to promulgate legislation that would regulate the government’s response to Covid-19.
“The Constitutional Court has considered this application. It has concluded that the application should be dismissed as it does not engage this court’s exclusive jurisdiction, and as it is not in the interests of justice to grant direct access.”
The HSF sought an order from the court that Parliament had failed to fulfil its constitutional obligations by failing to “to consider, initiate and prepare and pass legislation and regulate the state’s response to the threat posed and harm caused by the SARS-CoV-2 and Covid-19”.
In court papers, filed with the Constitutional Court on Wednesday, HSF director Francis Antonie argued that Parliament has actively failed to reclaim its duties as a legislative authority in South Africa. It has instead allowed the executive branch to legislate the state’s response to the pandemic.
According to the HSF, Parliament has failed in its duties as mandated by the Constitution, which is to consider issues and initiate, prepare and pass legislation relating to the threat and harm caused by the virus.
Equally, Ramaphosa, as the head of the executive, and the Cabinet have failed to fulfil their constitutional duties to prepare and implement legislation relating to Covid-19.
Antonie contended that the HSF case is uncomplicated in a matter of law.
The HSF further said that Covid-19 could remain a threat for months or even years, meaning that the state’s response will remain exclusively within the subjective purview of the executive branch of government.
In the court papers, the HSF explains that the application is not about the merits of any of the regulations, directions or other substantive exercise of power by the cooperative governance and traditional affairs (Cogta) minister, the president or the Cabinet relating to Covid-19.
The court, however, would not hear the matter and no costs have been awarded.
HSF legal counsellor Anton van Dalsen said they are considering the judgment and will make a decision on the way forward as soon as they can.
Other cases
Last week, the ConCourt dismissed an application for direct access by the DA, in their challenge to have certain parts of the Disaster Management Act declared unconstitutional.
The opposition party had argued that the Act, invoked during the Covid-19 nationwide lockdown, which hit 100 days on Saturday, gave “exceedingly broad” powers to the Cogta minister.
The DA said they were not deterred by the judgment and will fight the case in the lower courts.
Prior to that, the ConCourt dismissed an application by One South Africa movement leader Mmusi Maimane.
It ruled that it had considered the application, but had concluded that the applicant did “not make out a case for direct access”.
It was dismissed, as it was “not in the interests of justice to hear it at this stage”.
The apex court decided not to award costs.
Maimane subsequently took the case to the high court, where he lost.
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