COVID-19 and Courts Symposium: The Amalgamation of Powers in South Africa During the COVID-19 Pandemic

Dan Mafora is a Research Officer at the Council for the Advancement of the South African Constitution (CASAC).

This symposium consists of a series of blogs authored by the different panelists of a webinar hosted by the International Commission of Jurists titled “COVID-19 and Courts: A Global Trend of Judicial Deference?“

In the wake of the COVID-19 pandemic, and following the lead of many other countries globally, South Africa imposed a “lockdown” in March 2020. This lockdown was imposed following a declaration of a national state of disaster by the Minister of Cooperative Governance (Minister) in terms of the Disaster Management Act (DMA), emergency legislation purposed at responding to and preventing “disasters”, which it defines as “progressive or sudden, widespread or localised, natural or human-caused occurrence[s]” which “cause or threaten to cause … death, injury or disease”.

Invoking the DMA instead of declaring a state of emergency in terms of section 37 of the Constitution had the effect of allowing extensive limitations of rights by the executive without parliamentary approval. While the State of Emergency Act provides that a proclamation declaring a state of emergency and attendant or consequent regulations “shall be laid upon the Table in Parliament” and that Parliament may “disapprove of” and “make any recommendation” in connection to those regulations or any provision thereof, the DMA contains no such comparable provisions.

A declaration of a state of emergency would also have required any consequent legislation to be consistent with “the Republic’s obligations under international law applicable to states of emergency”, including the provisions of the International Covenant on Civil and Political Rights (Article 4) which requires that any derogation from rights under a state of emergency must be “strictly required by the exigencies of the situation”, as has been further detailed in the Siracusa Principles. In choosing to use the DMA, the executive has managed to exempt itself from meeting these onerous standards.

The Minister is empowered by section 27 of the DMA to make regulations to govern a state of disaster once declared, and these regulations have significantly limited a wide range of fundamental rights. Invoking the DMA had the effect of displacing, by executive fiat, entire existing legislative frameworks. Cabinet members responsible for various portfolios (such as the health, justice, transport, trade and industry, finance) were empowered, through a sub-delegation by the Minister of her regulation-making powers, to make “rules” and “directions” (all forms of subordinate legislation) augmenting various statutes and effectively expanding the complex network of lockdown regulations in response to the COVID-19 pandemic.

This situation is comparable to the one which arose in Malawi, where, by invoking her powers under the Public Health Act, the health minister issued “Rules” imposing a lockdown and restricting various rights in the process. The Malawian High Court found that the Rules and the lockdown itself had been ultra vires as the minister had not been empowered under the primary Act to make subordinate legislation dealing with matters other than the ones specified in that Act. That Court also found that the minister had imposed a state of emergency “through the back door and without … following the Constitution” and recommended that Parliament urgently pass new legislation to deal with the COVID-19 pandemic.

In South Africa however, responses to the COVID-19 pandemic have been driven by regulation-making power as the primary law-making tool with minimal parliamentary involvement or oversight and limited judicial intervention. I highlight the danger that this current situation poses to the separation of powers below.

Parliament’s failure to legislate

In September 2020, the Helen Suzman Foundation (HSF) took the Speaker of the National Assembly to court, arguing that Parliament had failed to fulfil a constitutional obligation to enact primary legislation to deal specifically with COVID-19, and that this failure amounted to a breach by Parliament of the state’s duty to “respect, protect, promote and fulfil the rights in the Bill of Rights”. While accepting that “the threat posed by the pandemic would … have triggered the duty to take measures in the main to protect the rights of all impacted on by the virus,” the High Court rejected HSF’s arguments, finding that this duty was not breached by Parliament’s failure to enact COVID-19 specific legislation.

Building on this finding, the Court held that the various limitations on fundamental rights resulting from lockdown regulations were as a result of the measures taken by the state in response to the pandemic. These measures, it found, were “grounded in the DMA and in particular the powers given to the Minister in terms of the DMA” which had as a “broad objective the protection of various rights”. The Court therefore concluded that because HSF had not taken issue with the exercise of the Minister’s regulation-making power and the content of the regulations themselves, it could not impugn the executive’s invocation of the DMA.

This reasoning simply dodges the HSF’s case that there was a duty on Parliament to respond to the pandemic with specific and targeted legislation in order to respect, protect, promote and fulfil the rights in the Bill of Rights. It also does not address an allied concern that the measures taken by the Minister in the regulations have interfered extensively with rights in a manner that is an unprecedented use of executive power and more suited to legislative power. That there exists other legislation (the DMA) which permits similar emergency measures to be taken is a separate issue, and a contentious one, given the on-going debates about the wisdom of acting in terms of the DMA in the current circumstances. The Court’s deference to the executive’s invocation of a statute in a matter concerning Parliament’s constitutional function missed the mark entirely, subsuming Parliament’s primary legislative authority under the Minister’s delegated secondary legislative authority, leading to the obvious question: what has happened to the separation of powers and courts’ willingness to guard one branch of government against the intrusion of another in the context of COVID-19?

The scope of executive law-making

The second case I highlight concerned a direct challenge to section 27 of the DMA where South Africa’s second-largest political party sought to have this provision declared unconstitutional for being an unlawful delegation of legislative authority. It argued that the DMA allowed the Minister to create conditions which mirrored a state of emergency without the necessary safeguards, and to displace Parliament’s oversight role over executive action. The High Court, in a majority judgment, dismissed the challenge, reasoning along the same lines as in Helen Suzman Foundation. It held that because “it is impossible for Parliament to legislate, in advance, ways and means to deal with sudden foreseen or unforeseen calamities,” it is “best for it to delegate some of its functions, finding also that “the executive would be better placed to deal rapidly, comprehensively and effectively with disasters in a way that Parliament cannot do”.

From this the majority of the High Court reasoned that the Minister’s almost unlimited powers to make regulations, sub-delegate regulation-making power, augment existing legislation, and to amend, repeal or replace regulations without parliamentary oversight was perfectly constitutional.

In a dissenting judgment, Judge Matojane set out some troubling issues with this approach, pointing out that so understood the DMA gives the Minister power to “legislate, interpret and execute [secondary] legislation that has wide-ranging limitations on the fundamental rights of all citizens without requiring that such legislation be first tabled in and approved by Parliament” (emphasis added). He also noted that there was no reasonable explanation provided for why, despite several interactions between Parliament and the executive after the national state of disaster was declared, no prior parliamentary approval or advice was sought by the Minister before drafting or issuing regulations. Because the DMA does not require parliamentary oversight, Judge Matojane therefore concluded that the regulation-making delegation constituted a “comprehensive divesting of legislative power” by Parliament to the executive.

Conclusion: Separation of Powers

These judgments highlight the extent to which the executive has amassed legislative power through the use of the DMA as emergency legislation to respond to COVID-19 without adequate checks on the exercise of this power, which could have been provided through the enactment of COVID-19 specific legislation.

Ordinarily, regulation-making power is such that it can only be exercised within a framework created by a primary statute. Having not been enacted in response to COVID-19, the DMA does not establish a meaningful framework to guide the Minister’s exercise of this power.

In effect, the Minister  has enjoyed plenary legislative power to legislate in areas where Parliament has itself never legislated and to sub-delegate regulation-making powers to her Cabinet colleagues who are not directly empowered by the DMA. One example of the risk created by this is the creation by the regulations of criminal offences relating to the spread of false information about COVID-19 where the DMA itself does not provide any lawful foundation for such criminalisation. This illustrates the extent to which rights (to freedom and security of the person and to freedom of expression) that were previously fully enjoyed have been curtailed by the Minister without Parliamentary approval, because, in reality, there is little limit to how far her powers can go.

While the DMA employs proportionality language insofar as it requires the Minister to exercise her powers where it is “necessary”, the courts have, by and large, deferred to the wisdom of the executive, and not sought to rigorously interrogate the regulations under such a standard, preferring to test the regulations against the lower threshold of rationality instead. The prevailing state of affairs is such that South Africa continues to be in a perpetual state of disaster, routinely extended by the Minister, without any intervention by Parliament. And, in view of the recent jurisprudence on the Minister’s powers under the DMA, there exists at present no rigorous judicial standard against which they can be tested. All this leads to the inescapable conclusion that the separation of powers exists only nominally under the current COVID-19 induced South African state of exception, which in reality has shown how an amalgamation of powers can occur in full view of all concerned.

[Comprehensive coverage of latest constitutional cases in South Africa can be accessed at Dan’s Newsletter, edited by the author.]