Sakeliga has sent a final letter of demand to the National Disaster Management Centre and Dr Nkosazana Dlamini-Zuma, insisting that they hand over the records of their classification process of the Covid 19 state of disaster. The demand comes as part of a court case brought by Sakeliga in March 2022, to lift the national state of disaster and prevent further unconstitutional prolonging or repeat of the state of disaster.
Even though the Covid-19 state of disaster has since been lifted by Dr Dlamini-Zuma, partly because of Sakeliga’s litigation, the court case remains important to prevent future irrational, endless extensions of states of disaster. Sakeliga is asking the court, among other things, to declare section 27(5)(c) of the Disaster Management Act unconstitutional, if this provision authorised the extensions in the way that they were carried out.
At the core of Sakeliga’s case, lies the constitutional duty of the National Disaster Management Centre to continuously review if at any particular time there still objectively exists a disaster as defined by the Act. Instead of doing this, the head of the Disaster Management Centre, Dr Mmaphaka Tau, failed for more than two years to review his original disaster classification. Thanks to his failure the state of disaster could time and again be seamlessly renewed as if circumstances and knowledge about Covid-19 never changed. Moreover, it made litigation exceedingly difficult.
Given his failure to review, Sakeliga in January this year wrote to Dr Tau to demand that he reviews his classification of Covid-19 as a ‘national disaster.’ This was not done, the state of disaster was extended again, and Sakeliga’s litigation was initiated.
Because the Disaster Management Act does not clearly require a reclassification of a disaster before extension of a national state of disaster is considered, Sakeliga will ask the court to declare the Disaster Management Act unconstitutional in that respect. The Minister of Co-operative Governance and Traditional Affairs should not enjoy free reign to prolong a state of disaster without specialists at the Centre at every instance confirming the existence and continuous existence of an objectively classified ‘disaster.’
If the gaps by which the government unconstitutionally and incessantly continued to renew and extend the national state of disaster for more than two years are not plugged, great risk remains. Billions of rand worth of economic activity and the ability of people to earn their bread in a dignified way will be at stake once more, not to speak of corruption opportunities on a grand scale.
Sakeliga’s papers in the case were filed on 11 March 2022. In terms of the court rules the respondents were compelled to provide a complete record of decision-making regarding all decisions challenged in the case. Six months later, the respondents have still not done so. Should they continue to remain at failure, Sakeliga will consider legal advice to obtain further court orders or undertake further action against the respondents, including pursuing punitive costs orders.
Legal and liaison officer
Piet le Roux