State of disaster faces mounting legal challenges

 ·16 Feb 2023

Civil action group Outa has joined other groups in launching a court challenge against president Cyril Ramaphosa’s declaration of a state of disaster over the ongoing energy crisis.

In papers filed on Thursday (16 February), Outa approached the Pretoria High Court to have the declaration overturned.

Ramaphosa announced during his State of the Nation Address a week ago (9 February) that, after consultation with legal experts, the national power crisis constituted and met the requirements for a state of disaster to be declared.

Under the state of disaster, the government would be able to cut through red tape and take swift action in dealing with load shedding and the wider energy shortfall, and could quickly exempt critical infrastructure and services from rolling blackouts.

According to Outa, however, the decision to declare the disaster was irrational, arbitrary and unlawful, because the national government already has the requisite power to deal with the crisis – it simply hasn’t done so.

“(The state of disaster) is the result of a crisis created by the government itself, which has been more than 15 years in the making. It is unnecessary because laws already exist to enable urgent action to address the energy crisis,” the group said.

“Years of state capture, mismanagement and a dysfunctional culture cannot be a rational justification for the declaration of a national state of disaster,” said advocate Stefanie Fick, Outa Executive Director.

Outa argues that the state of disaster grants extraordinary powers to officials to make far-reaching decisions without parliamentary oversight – which is a real concern in light of the extensive looting enabled by emergency procurement during the Covid-19 state of disaster.

“If the decision to declare a national state of disaster due to this self-created crisis by the government is allowed to stand, it will open the floodgates for further such disasters to be declared in various other sectors that suffered from similar dysfunction, mismanagement, and corruption.

“Declaring a national state of disaster will, in effect, become a tool for the government to circumvent accountability and hide behind the excuse of a disaster to reach an apparent ‘quick-fix’ for problems that were years in the making,” Fick said.

“We are bringing this application because Outa will not stand by when government grants itself extraordinary powers with reduced oversight to deal with a self-created energy crisis.”

Outa is bringing the application against:

  • The President, who announced the national state of disaster;
  • The head of the National Disaster Management Centre (NDMC), who classified the electricity crisis as a disaster;
  • The Minister for Cooperative Governance and Traditional Affairs, who declared the national state of disaster;
  • The Minister of Mineral Resources and Energy;
  • The Minister of Public Enterprises;
  • The Speaker of the National Assembly;
  • The Chairperson of the National Council of Provinces; and
  • Eskom Holdings.

The sixth to eighth respondents are cited as interested parties and no relief is sought against them unless they oppose the application.

Outa is asking the court to interdict the government from taking any further steps or issuing or implementing any regulations in terms of the disaster decisions pending the finalisation of the second part of its application, which is to review and set aside the declaration in its entirety.

The group also wants the government to provide the records of all documents and all electronic records relating to the making of the decisions and the reasons for the decisions.

Other court challenges

At least four other court actions have been initiated using the same broad grounds against the state of disaster or the wider Disaster Management Act (DMA).

Trade union Solidarity also pulled the trigger this week, launching its court action on Tuesday (14 February), arguing, like Outa, that the government is the source of the disaster in question, and that giving it unsanctioned powers to address the problem it caused is irrational.

It is argued in Solidarity’s application that, among other things, the electricity crisis does not meet the definition of a disaster in terms of the relevant legislation; that existing legislation can adequately manage the crisis; that the declaration of a state of disaster does not serve a clear purpose; and that there was improper political interference in declaring the disaster.

“The government itself is the cause of the electricity disaster and it cannot declare itself a disaster, thereby obtaining extraordinary powers to address the disaster. Disaster legislation is not meant for government failure,” said Dr Dirk Hermann, Solidarity’s chief executive.

Solidarity said that a state of disaster is a state of exception and a process that is in conflict with normal democracy.

A state of disaster is intended as a temporary intervention only and should be used only if no other instrument is available to deal with it. This means that if another legislative instrument is available to deal with this state of exception, it must be used, it said.

“All the measures announced in president Ramaphosa’s SONA can be implemented by using other statutory instruments. If other instruments do exist, disaster legislation does not apply,” Hermann said.

Other processes underway include two from the Democratic Alliance – which is challenging the latest declaration of the state of disaster while also looking to expedite its ongoing challenge of the Disaster Management Act as a whole.

The DA has cited the same reasoning for challenging the latest move but has also doubled down on its challenge to the DMA, arguing that it does not make provision for proper oversight by Parliament and leaves the country open to abuse by politicians.

A similar court process challenging the DMA is ongoing involving business interest group Sakeliga, which announced this past week that it was also consulting its attorneys on the latest state of disaster, and would also seek to have its ongoing court case expedited.

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