DA to appeal Presidency’s decision to hide legal advice on the State of Disaster

16 March 2023

The DA will appeal the decision taken by the Presidency to deny us access to the record of the legal advice that President Cyril Ramaphosa relied on when he took the decision to declare a State of Disaster (SoD) on the loadshedding crisis. Ramaphosa’s refusal to play open cards on the SoD is in stark contrast to the claim he made that his government will strive for accountability and transparency in the implementation on the SoD.

On 16 February, the DA submitted a PAIA application to the Presidency on which we sought to obtain documentation on the record of decision that informed the declaration of the SoD and the legal advice that the President relied on to make that decision. The Presidency responded today indicating that the request on the documentation of decision has been referred to the Director General in the Department of Cooperative Governance and Traditional Affairs.

For the legal advice that informed the President’s decision, the Presidency declined to give the DA access to the record with no reasons given. The DA will now exercise its rights in terms of sections 74 and 75 of the PAIA to appeal the decision of refusal based on the view that it is unreasonable and is a deliberate attempt to shield information that is in the public interest.

The Presidency’s actions have set a dangerous precedent for the entire government system directly involved in implementing the SoD, wherein they will now see accountability and transparency as optional. With no direct accountability to Parliament, the SoD is predictably becoming cloaked in secrecy, and the Presidency is leading the way.

It is possible that the refusal to provide a record of the legal advice could be the clearest indication yet that the President may have gone against legal guidance not to declare an SoD. This is precisely why the DA has approached the court to challenge the declaration of the SoD, whose regulations and parameters extend beyond the electricity crisis and could be abused for corruption purposes.

If the President does not have anything to hide, he should be open with South Africans and provide records of the legal advice that he relied on when he declared the SoD. Failure to do so will only entrench the perception that the SoD was declared as part of a political decision to buy the ANC time after its decades long failure to address the electricity crisis.

Issued by Eleanore Bouw-Spies, DA Shadow Deputy Minister of Cooperative Governance and Traditional Affairs, 16 March 2023