Democratic Alliance v Minister of Co-operative Governance and Traditional Affairs and Others

Following the outbreak of the Covid-19 pandemic, the Minister of Co-operative Governance and Traditional Affairs declared a national state of disaster under s 27 of the Disaster Management Act 57 of 2002 (DMA) and promulgated extensive regulations that imposed unprecedented restrictions on constitutional rights. During the level four lockdown, the Democratic Alliance (DA) challenged the constitutionality of s 27 of the DMA in the Gauteng Division of the High Court, Pretoria. The DA argued that s 27 amounted to an impermissible delegation of plenary legislative power to the Minister, allowed the creation of a de facto state of emergency without complying with s 37 of the Constitution, and failed to ensure adequate parliamentary oversight. The High Court majority dismissed the challenge, finding the delegation constitutionally permissible, while a minority would have upheld it. The DA appealed to the Supreme Court of Appeal.

The appeal was dismissed. No order as to costs was made.

The judgment affirms the constitutional validity of section 27 of the Disaster Management Act and clarifies the distinction between a state of disaster and a state of emergency in South African constitutional law. It is significant for separation of powers jurisprudence, confirming that broad but constrained delegations of regulatory power to the executive are permissible in circumstances of national disasters, while preserving judicial review and parliamentary oversight through constitutional means.