Lawyers threaten Ramaphosa's National Command Council
In separate lawyers’ letters, interviews and an opinion piece, three lawyers - Advocates Vuyani Ngalwana SC, Nazeer Cassim SC and Erin Richards - as well as cigarette giant British American Tobacco (BAT) and the Black First Land First (BLF) this week accused Ramaphosa of illegally establishing the NCC and allowing it to displace constitutional and statutory bodies.
BAT also threatened legal action against Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma, unless she reversed the NCC’s decision not to allow the sale of cigarettes and other tobacco products by tomorrow. This came after Dlamini Zuma announced on Wednesday night that the NCC had reversed an earlier announcement by Ramaphosa that a ban on cigarette sales would be lifted from May 1.
The dramatic U-turn, which took place a few days after Ramaphosa’s televised address to the nation, marked a new twist in the government’s fight against the acute respiratory virus and sparked speculation by the likes of DA MP Dean Macpherson that it showed that Dlamini Zuma was “now running the show. Cyril has become nothing but a spectator”.
In an opinion piece written for the Sunday Independent this week, Ngalwana added his voice to calls for clarity regarding the legality and powers of the NCC.
“Under current Covid-19 induced circumstances in South Africa, a body known as the National Command Council (NCC), apparently appointed by the South African president to lead the fight against Covid-19, appears to be determining their implementation.
“The question that arises is in terms of what constitutional power government policy can be delegated by the president to a body that appears to have no legitimate legislative or constitutional existence.
“Where in the Constitution, or elsewhere, does the president source the power to delegate executive functions to the NCC, comprising only some but not all the 28 ministers?,”said Ngalwana.
“A decision that is taken by the president must be in writing if taken in terms of legislation or if it has legal consequences [s 101(1)]. A written decision by the president must be counter-signed by another Cabinet member if the decision concerns a function assigned to that other Cabinet member [s 101(2)].
“Have these requirements been met in the appointment by the president of the National Command Council? If so, what piece of legislation, or constitutional provision, did he cite as conferring upon him the power so to do?”
This came as Cassim and Richards said in a lawyer’s letter sent to Ramaphosa that the NCC “appears to be displacing the constitutional and statutory functionaries under the Disaster Management Act (DMA) 57 of 2002, compromising parliamentary oversight, and in turn, opening the door to potential unchecked abuses or excesses of state power”.
In a letter sent by their lawyer, Luqmaan Hassan of KHK Attorneys, the duo accused the NCC of centralising power and interfering with Covid-19 regulations lawfully issued by Dlamini Zuma under the DMA Act.
“We see no lawful basis for the NCC to interfere (sic) in the making of regulations, nor do we see any lawful basis for the body to exercise any other statutory regulation-making powers under the DMA,” Cassim and Richards said.
“On its composition, the NCC appears to us to constitute a centralisation of power that is impermissible under the DMA. To the extent that such centralisation is permissible, the NCC would have to be conducting its functions under a lawful delegation from the national executive”.
Insisting that they had failed to “locate” any official documentation establishing the NCC or “providing for a lawful delegation of authority”, Cassim and Richards said that in the absence of such, they did not believe that the body had “any authority” to make determinations such as the decision to impose a lockdown, extend it, determine alert levels or exercise any power currently vested in the national executive.
Just like Ngalwana, the duo said that the exclusion from the NCC of eight other members of the national executive and Deputy President David Mabuza made a mockery of parliamentary accountability by the executive individually and collectively. Cassim and Richards gave Ramaphosa until tomorrow to avail information proving the legality of the NCC, or face potential litigation.
Ramaphosa’s spokesperson, Khusela Diko failed to respond to a request for comment this week.
Political analyst Dr Metji Makgoba said Cassim’s and Richards’ letter was “serious” because it questioned the constitutionality of the NCC, accountability measures and decision-making processes.
“I think this is a damning legal threat because it shows that the coronavirus command council was hastily constituted. So if the president is able to provide a comprehensive response to counter this, that would work on his behalf. It can actually even improve his legitimacy. But if he doesn’t have the capacity to respond to this, it’s going to be a damning indictment on his leadership,” Makgoba said.
He said the implication of the legal threat was that Ramaphosa could be found to have violated the Constitution, “if the structure was constituted outside the remit of the law even though it is a humanitarian problem”.
“So if the president is found to have violated the law, the law would have to take its course. But I think the issue is going to politicise the courts, because the courts don’t want to operate in a vacuum. The court might be political and provide a vague judgment.”
BLF President Andile Mngxitama said the NCC was an unlawful exercise of dictatorial powers.
Mngxitama said the NCC gave Ramaphosa absolute power, which he used to benefit those who donated to his 2017 campaign to become ANC president. “So the powers of the NCC seem to us as powers to subvert any democratic accounting of any rule of law,” said Mngxitama, adding that BLF had also written to Parliament “asking specifically whether the normal procurement processes have been suspended, and under what laws.
In a separate legal letter, sent by lawyer Michael Evans of Webber Wentzel, BAT gave Dlamini Zuma until tomorrow to reverse the ban on the sale of cigarettes.
The largest cigarette manufacturer in the country accused the minister of prejudicing it through the “complete about-turn made by you regarding the lifting of the prohibition” of the sale of tobacco and vaping products. It said this was contrary to Ramaphosa’s announcement on April 24 that the sale of tobacco would be permitted, which saw 10000 orders being placed by retailers.
“On the evening of April 29, one day ahead of the move to level 4, you announced that the upliftment of the prohibition on the sale of tobacco and vaping products had been reversed, and that the prohibition would be retained during level 4 period. At no stage was our client or anyone else given the opportunity to comment on the proposed retention. All those in favour of the upliftment of the prohibition would have seen it necessary to comment given the very affirmative and positive statement made by the president,” said BAT in the letter.
Dlamini Zuma’s spokesperson, Lungi Mtshali, said: “The letter is requesting a reply by 10am on Monday and she will reply.”
The Sunday Independent