The Delegation of Parliament’s Law-Making Power: Democratic Alliance v Minister of Co-Operative Governance and Traditional Affairs [2021] ZAGPPHC 168; 2024 (5) SA 463 (SCA)
Résumé
Section 27 of the Disaster Management (Act 57 of 2002) (DMA) awards the national executive authority delegated law-making power to effectively manage a disaster, as was the case when the presence of the Coronavirus disease was confirmed in South Africa in March 2020. Although it is accepted that Parliament can delegate law-making power to the national executive authority, the question around the limitations of the power to delegate law-making power was addressed in the High Court and Supreme Court of Appeal decisions in Democratic Alliance v Minister of Co-Operative Governance and Traditional Affairs. The Democratic Alliance attacked the constitutionality of the DMA on the basis that section 27 constitutes and impermissible delegation of law-making power. Furthermore, the Democratic Alliance argued that the DMA is unconstitutional as it does not expressly provide for parliamentary oversight when section 27 is implemented. This case note provides an overview of these decisions and concludes that although it is generally accepted that Parliament can delegate its law-making powers to the executive authority, the extent to which it can do so is strictly considered by the courts. On this basis the courts confirmed the general restrictions that must be in place for the delegation of law-making power to be considered valid. As the DMA contains sufficient safeguards for the exercise of the delegated law-making power, the courts did not find the DMA unconstitutional on this basis. The courts also found that the lack of express provisions in the DMA requiring parliamentary oversight when section 27 is implemented does not render the DMA unconstitutional. However, due to the minority decision in the Supreme Court of Appeal decision, which differed from the majority on this point, Parliament should consider building in express provisions for parliamentary oversight when section 27 is implemented in such a manner that the executive would still be able to deal effectively with a disaster.
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