these are summaries of key points for the cases listed in the description of this document. it helps to know all the principles without having to read through the entire case.
Helen Suzman Foundation v Speaker of the National Assembly and Others (5
Oct 2020)
Facts:
National assembly has had to respond to the far-reaching impact and
consequences of the pandemic
Applicant seeks declaratory relief that the respondents have failed to fulfil their
constitutional obligation to initiate and pass legislation to deal with the Covid-19
pandemic
Wants the court to issue a ‘mandamus’ (command) to the respondents to fulfil
these obligations by initiating and passing legislation to deal with the Covid-19
pandemic.
The Minister of Co-operative Governance and Traditional Affairs is granted wide
powers in terms of section 27(2) of the Disaster management Act.
These powers are limited by Section 27(3) of the DMA which provides as follows:-
“(3) The powers referred to in subsection (2) may be exercised only to the extent that this
is necessary for the purpose of-
(a) assisting and protecting the public;
(b) providing relief to the public;
(c) protecting property;
(d) preventing or combating disruption; or (e) dealing with the destructive and other
effects of the disaster.”
the applicant accepts that the use of the DMA by government as a response to the COVID-
19 pandemic was lawful and appropriate and that its use to date has been constitutionally
compliant
However, the applicant is unhappy with government always relying on the DMA as the
vehicle and the legal authority for its response to COVID-19.
Applicant says that the DMA was intended to only operate for a short time until
Parliament and Cabinet were able to reclaim their primary executive and legislative roles.
That short time has come and gone, and the executive and parliament are accused of
failing to reclaim their roles.
Legal issue:
Are the respondents under a constitutional and legal obligation to initiate and pass
legislation, and in particular is the power to do so permissive or peremptory, and if
such a duty exists then;
Have the executive and legislature failed to fulfil their constitutional obligation to
initiate and pass legislation to deal with the Covid-19 pandemic, and associated
therewith is the DMA the constitutionally appropriate response both in the short term as
well as the long term.
Ratio:
, NA is not obligated to initiate and pass legislation so long as the
objective is met
Order:
The application is dismissed, each party to pay its own costs
Applicable law:
Disaster management Act
Bill of rights
Various case law
Reasoning:
Mlambo? whether its permissive or peremptory text in context
Rights turn power into duty e.g., rights under threat gives state duty to
take measures to protect the rights in the Bill of Rights and in particular the right to health
care and the right to bodily and psychological integrity
It would have been unimaginable for the State to have done nothing in the face of a
pandemic that medical science tells us spreads with often fatal consequences by close
human contact
the limitation of rights that arises from it is that the Applicant’s concern is under scrutiny.
The answer to that is that any limitation is not per se objectionable but that it must meet the
limitation criteria in the Constitution. If it does then the limitation is constitutionally
compliant; if it does not it stands to be struck down. What the Applicant impermissibly seeks
is legislation to deal with the consequences of the limitation of rights without challenging
the limitation itself. (the limitation is constitutional)
In conclusion and given that Section 7(2) does not define the specificity of the measures to
be taken, the measures taken by the State (vesting powers unto the Minister to deal with
the pandemic) fulfil the constitutional 24 obligations that Section 7(2) would have triggered
are in line with the constitutional duty that Section 7(2) creates to protect, fulfil, respect and
promote human rights
The argument that Section 7(2) creates an additional duty as it were for the State to legislate
in response to the limitations on rights created as a result of the response to COVID-19 is not
sustainable for the reasons already given.
Conclusion:
The powers are merely permissive.
NA can fulfil its constitutional duty to protect the public from the
pandemic etc however it sees fit, is not obligated to pass legislation so
long as the objective is met.
Vesting powers to the minister to respond is sufficient in achieving this.
, Democratic Alliance v Speaker of National Assembly and Others (2016) ZACC 8
Facts:
The facts arise from the State of the Nation Address delivered by the President of the
republic on 12 February 2015 at a joint session of the two Houses of Parliament.
Shortly after the address commenced, an EFF member rose to ask a question, which was
whether the President was to repay money spent on certain upgrades to his private
residence at Nkandla.
The Speaker responded by saying that the SONA was not the occasion for raising questions
of that nature.
Other members of the EFF were dissatisfied with the response and interjected. They ignored
the Speaker’s requests that they take their seats for the president to continue with his
address.
Eventually the speaker asked the EFF members to leave the parliamentary Chamber
After they refused to leave, they were forcibly removed in terms of section 11 of the Act.
At that point, the parliamentary leader of the Democratic Alliance sought clarity on whether
members of the SAPS were involved in the removal – and it was confirmed that the SAPS
was involved.
The leader of the DA opined that the forced removal was unconstitutional and amounted to
a breach of the separation of powers doctrine. Members of the DA then left the Chamber
voluntarily.
The DA approached the High Court seeking a declarator that section 11 is constitutionally
invalid. It asked the court to read in words that would exclude members of Parliament from
the “person” liable to be arrested and removed in terms of section 11.
That means that section 11 should be made to read as being applicable only to ordinary
people.
The DA then alternatively sought the removal of the words “arrest” and “security services”
from section 11, so that there could be removal, but not arrest, of MP’s and removal should
be by persons other than members of the security services.
In a second alternative, the Democratic Alliance sought notional severance in order to
prevent the application of section 11 to any exercise of the parliamentary privilege of
freedom of speech.
In a further alternative, the Democratic Alliance sought an order declaring that, as a matter
of interpretation, section 11 is not applicable to the exercise of parliamentary privilege
The High Court decided against the DA by holding that its reasonable to construe “person” in
section 11 to include a member of parliament.
The high court held that the definition of “disturbance” as it appears in the section,
detracted from the members parliamentary privilege of free speech.
Consequently, it found section 11 to be constitutionally invalid.
In order to remedy the defect, it ordered notional severance.
It left the text of the provision unaltered but limited its applicability as reflected in the Court
order.
The Court suspended the order of constitutional invalidity for a period of 12 months to
afford Parliament an opportunity to remedy the defect.
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