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[1]     This is an application, brought by the Helen Suzman Foundation (HSF) in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013, for the reconsideration of an adverse costs order made pursuant to this court’s dismissal of the HSF’s petition for leave to appeal against an order of a full court of the Gauteng Division of the High Court, Pretoria (the full court). The President of this court referred the reconsideration of the costs order for argument in open court and the parties agreed that it should be determined without oral argument, in terms of s 19(a) of the Superior Courts Act.

[2]     The background to this application is the following. The HSF brought an urgent application for declaratory relief against the Government of the Republic of South Africa, represented by the Speaker of Parliament, the President, the Cabinet, the Chairperson of the National Council of Provinces and the Minister of Co-operative Governance and Traditional Affairs (the Minister). The order sought was essentially to the effect that Parliament had failed to fulfil its obligations, in terms of ss 42(3), 44(1), 55(1), and 68 of the Constitution, to provide a legislative response specific to the Covid-19 pandemic.  

[3]     In order to manage the Covid-19 pandemic, a national state of disaster had been declared by the Minister, in terms of s 27(1) of the Disaster Management Act 57 of 2002 (DMA). Regulations and directions had been issued in terms of the DMA concerning a broad range of issues, including the lockdown of the entire population and the control of economic activity. The HSF’s application challenged the continued reliance of the government on the DMA as the source of authority for managing the pandemic. It contended that the Minister, the Cabinet, and the President were deliberately evading the open, accountable and participatory Parliamentary lawmaking processes envisaged by the Constitution, by failing to enact specific legislation to manage the pandemic, rather than governing by decree in terms of the DMA. It sought a declarator that Parliament had failed to initiate, prepare and pass legislation to regulate the state’s response to the harm caused by the Covid-19 pandemic and that the Cabinet had failed to initiate that legislation as it was obliged to do under s 5(2)(d), and to further fulfil its obligations under s 7(2) of the Constitution, to ‘respect, protect and fulfil the rights in the Bill of Rights regarding their legislative responses to the impact of Covid -19’. The government parties opposed the application on the basis that they were not under an obligation to pass specific legislation and that the DMA provided a proper, comprehensive legislative framework for management of disasters, including the Covid-19 pandemic.