Sakeliga has received a letter from the National Disaster Management Centre (NDMC) which proves that the current National State of Disaster is being maintained unconstitutionally.
The letter, by Dr Mmaphaka Tau, head of the NDMC, contains extensive admissions that the NDMC has not, and even refuses to independently reconsider its original classification on 15 March 2020 of Covid-19 as a ‘national disaster’.
The importance of the classification per se lies in the fact that, under the Disaster Management Act (DMA), a National State of Disaster may only be declared by the Minister of Co-operative Governance and Traditional Affairs based on a prior and existing classification of a national disaster by the NDMC. Not only should this classification be done independently, but also reassessed continuously. Only upon, and for as long as, the head of the NDMC has classified an event as a disaster, may the Minister declare and maintain a National State of Disaster.
The DMA’s stipulations regarding classification serves a crucial constitutional function. It checks executive power by separating the objective evaluation of an adverse event, as a disaster or not, from the executive step of declaring a National State of Disaster, in terms of which the Minister has since 2020 assumed extraordinary executive power. This duty is also underpinned by the Constitution, which demands that all public office bearers, such as Dr Tau, use their powers to protect and advance the constitutional rights of the public.
However, contrary to his duties under the DMA and the Constitution, Dr Tau now admits to deferring to Cabinet and the Minister for deciding whether to maintain or reassess his original classification, rather than doing so independently based on objective criteria.
Dr Tau’s logic, furthermore, is circular, as he states that he will not reassess the disaster classification due to a Cabinet decision to extend the National State of Disaster. Yet, Cabinet, through the Minister, must rely on the NDMC’s classification before they may extend the National State of Disaster in the first place. It is Cabinet that must defer to the NDMC, not the NDMC to Cabinet.
Dr Tau’s admission is evidence of unconstitutionality in at least one of two ways: either it amounts to unconstitutional dereliction of duty on the part of Dr Tau, or to unconstitutionality of the Disaster Management Act itself. In both cases, the unconstitutionality lies in failings to offer independent oversight of the executive and thereby failing to protect constitutional rights. Dr Tau’s letter shows that the NDMC is not acting as an objective check on executive power, considers itself to be an agent of the executive, has no process in place to continuously reassess its two years old classification of a ‘national disaster’, and is in breach either of the DMA and/or the Constitution.
In accordance with its statement of 20 January, Sakeliga has instructed its legal team to approach the High Court for the setting aside of the classification of COVID-19 as a national disaster and further constitutional relief.
Click here for Dr Tau’s letter received by Sakeliga on 3 February 2022.