legal challenges against state of disaster are increasing

Outa has joined other civil action organisations in filing a judicial challenge against President Cyril Ramaphosa’s proclamation of a state of disaster due to the ongoing energy crisis.

Outa petitioned the Pretoria High Court on Thursday (16 February) to have the proclamation annulled.

Ramaphosa said a week ago (9 February) during his State of the Nation Address that, after consulting with legal experts, the national power crisis constituted and satisfied the parameters for a state of disaster to be proclaimed.

According to Outa, the decision to proclaim the disaster was illogical, arbitrary, and illegal, because the national government already possesses the necessary authority to deal with the situation – it simply hasn’t used it.

“(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 claims that the state of disaster gives authorities tremendous powers to make far-reaching decisions without legislative accountability, which is a legitimate worry given the widespread theft facilitated 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 has filed an 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 through eighth respondents are identified as interested parties, and no remedy is sought against them unless they object to the application.

Outa is seeking the court to prevent the government from taking any further action, releasing or implementing any rules in relation to the catastrophe decisions, until the second phase of its application, which is to examine and set aside the declaration in its entirety, is completed.

The organisation also requests that the government produce records of all paperwork and electronic records relevant to the decision-making process and the reasons for the choices.

Additional legal challenges

At least four more court proceedings have been filed against the state of disaster or the Disaster Management Act on the same broad grounds (DMA).

Solidarity, a trade union, also took action this week, filing a lawsuit on Tuesday (14 February), stating, like Outa, that the government is the source of the calamity and that giving it unconstitutional powers to fix the issue it produced is nonsensical.

The application of Solidarity contends, among other things, that the electricity crisis does not meet the definition of a disaster under the relevant legislation; that existing legislation can adequately manage the crisis; that declaring a state of disaster serves no 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.

According to Solidarity, a state of calamity is an exception and a process that is incompatible with regular democracy.

A state of catastrophe is intended to be a temporary intervention and should only be utilised if no other tool is available to deal with it. This implies that if another legislative tool is available to deal with this condition of exception, it must be employed, according to the ruling.

“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 proceedings in the works include two from the Democratic Alliance, which is contesting the most recent designation of disaster while also attempting to expedite its continuing challenge to the Disaster Management Act as a whole.

The DA has used the same reasons to contest the current step, but it has also doubled down on its challenge to the DMA, claiming that it lacks sufficient monitoring by Parliament and exposes the country to misuse by politicians.

A similar court procedure against the DMA is now underway involving the business interest organisation Sakeliga, which indicated this week that it was speaking with its counsel on the new state of disaster and will seek to have its ongoing court action accelerated.