The legal fight between President Cyril
Ramaphosa and three prominent lawyers over the legality of his national
coronavirus command council (NCCC)
has taken another turn.
Advocates Nazeer Cassim SC, Vuyani Ngalwana SC, and Erin Richards have laid down the law to Ramaphosa by rejecting his explanation, accusing him of avoiding accountability and reminding him of his constitutional obligations to act “with a high standard of professional ethics” and to “ensure transparent governance facilitated by access to information”.
In response to a letter from Ramaphosa’s office, Cassim and Richards on Friday rejected the Presidency’s explanation of the legality of the NCCC and accused the president of authorising a letter which avoided the real issues, added to the “confusion” and adopted a “perturbing” tone.
“Our clients are surprised by the tone. To the extent that the president authorised the issuing of the letter, it is regrettable,” said Cassim and Richards’ lawyer Luqmaan Hassam.
“More perturbing, however, than the tone is its content. The letter fails to answer questions raised. The letter only adds to the confused communication that has plagued the government’s statements about the NCCC to date.”
This came after the Presidency’s director-general, Dr Cassius Lubisi, accused the duo in a letter of insisting on “putting in jeopardy all measures taken to save South African lives and ensure security of public health”.
He added that their legal threat against the NCCC was “not commensurate in our respectful view with their positions as officers of the court”.
“No rules exist to direct the Cabinet on how it organises its work to ensure the best possible co-ordination of its members and ideal means of fulfilling their functions. It makes these choices, for example, in the creation of clusters such as the economic cluster, made up of those members of Cabinet decides on, and which can change should it deem it necessary. It is this function that informs the creation and dissolution of inter-ministerial committees, set up where a particular matter requires constant co-ordination or unique co-ordination for a specific project,” Lubisu wrote.
He rejected Cassim and Richards’ assertion that the NCCC had centralised power and interfered with Covid-19 regulations issued by Co-operative Governance and Traditional Affairs Minister Dr Nkosazana Dlamini Zuma.
“When you speak in your letter of others ‘interfering’ with a minister’s power to determine regulations, we trust that you appreciate that Cabinet acts as a collective and in a disaster related to a communicable disease responsibilities of numerous Cabinet members may be affected by the actions of the Cabinet member responsible for the administration of the Act. That Minister Dlamini Zuma consults with these members and factors their views and own responsibilities into account before finalising regulations is not interference; it is collective work from a collectively accountable body. No Cabinet works in isolation.”
Cassim and Richards also rejected the Presidency’s explanation that the Cabinet had discretion on the mechanism it adopted to co-ordinate its internal administrative functioning.
They maintained the discretion “does not extend to allowing Cabinet to centralise its powers into a select group of ministers without an express and lawful delegation”.
They said an express and lawful delegation of authority that was “constitutionally permissible” would, in their view require, at the very least, compliance with sections 283 and 101 of the Constitution, “with the applicability of section 238 falling within the ambit of an organ of state”.
“Where, exactly, the NCCC sources this decision-making power either in the Constitution or in any piece of legislation is nowhere explained in your communications. Since there is no indication that the NCCC is ‘an executive organ of state’ it would seem to us that section 238 of the constitution cannot be a source of that power. We could find no provision in the DMA that countenances such a delegation to the NCCC,” Carrim and Richards said.
They also took issue with Ramaphosa’s statement in his weekly letter, in which he said the “regulations ratified by Cabinet” and announced by Dlamini Zuma on April 29 extended the ban on the sale of cigarettes, saying it “does not appear to make sense”.
“If the NCCC is a properly established, constituted and authorised body, it would not need to seek ratification of its decisions. To the extent the NCCC is not properly established, constituted and authorised, it is our opinion that any “decision” it has taken or will take is unlawful, and it is doubtful Cabinet is empowered to ratify an unlawful decision by an unlawful body,” they added.
Cassim and Richards reiterated that, in their view, the NCCC was either a “co-ordinating body”, in which case it was entitled to exercise any decision-making, or it was a lawfully established decision-making body exercising powers delegated to it by Ramaphosa and counter-signed by Cabinet as required by the Constitution.
“To date, the government’s version has oscillated between the above two alternatives, and has left the country at a loss as to what the NCCC is doing”, they added.
In a separate letter to Lubisi, Cassim upped the ante, saying the government’s lockdown regulations had inflicted a “great injustice” on South Africa’s young democracy and “further created the schism between the haves and have nots”.
He said the economy was in tatters, healthy people have been quarantined while there was “no social justice in the thinking and application of the principles of the lockdown”.
“The economy is in tatters. Who knows the depth and consequences of this? Some predict anarchy - what we do witness is hunger, anger and a destruction of family life. Thus the cost is too enormous to countenance. To date, only 0.0063% of the population has been affected with coronavirus. The fatality rate of those inflicted stands at 1.9413% of all reported cases,” Cassim said in a letter sent in his personal capacity.
Writing on his blog, anchored in law, Ngalwana rejected Ramaphosa’s explanation and demanded accountability.
“The President answered neither of the two questions. Instead, speaking through the cabinet secretary, the President dressed down the advocates, lecturing them on “trite principles of our Constitutional democracy”, excoriating them for “insistence on putting in jeopardy all measures taken to save South African lives” and threatening them saying their inquiry “is not commensurate with their positions as officers of the court”, he wrote.
“Having read both the letter of the two advocates requesting information and clarification from the President about the provenance of the NCC(C) that the President chairs and the extent of its powers, on the one hand, and the President’s “sharp” response to their letter, on the other, one wonders whether lawyers who dare seek clarity from the President about matters of constitutional importance are safe to raise these questions not only in their personal capacities as citizens (s 3(2)) but also as legal practitioners (s 22) representing those who do.”
The debate over the legality of the NCCC came as the number of Covid-19 cases surged to 9420 cases on Saturday, with 186 deaths.
Public Service and Administration Minister Senzo Mchunu also announced plans for public servants to return to work, saying the time had come for them to serve as ambassadors of the Covid-19 regulations.