Ramaphosa threatened with possible litigation over constitutionality of council in charge of response to Covid-19

President Cyril Ramaphosa (GCIS)
President Cyril Ramaphosa (GCIS)

Two of the country's high-profile advocates have written a legal letter to President Cyril Ramaphosa to request clarity on the powers wielded by the National Command Council (NCC) in charge of the response to the novel coronavirus. 

In a nine-page letter through RHK Attorneys, advocates Nazeer Cassim and Erin Dianne Richards say they are concerned about the possible risks of constitutional and democratic malfunctioning.

This, they say, arises from what appears to be the questionable establishment, structure and functions of the NCC, as well as the noticeable lack of transparency from the government about the body.

"The problem is that the NCC only consists of 19 ministers. That is not the entire national executive. Where are the remaining ministers? On its current composition, the NCC appears to us to constitute a centralisation of power that is impermissible under the Disaster Management Act," the letter reads. 

The two have threatened to take the matter to their ethical bodies for possible litigation, if the president fails to respond. 

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The advocates say that, from the information available to them, the NCC appears to be displacing constitutional and statutory functionaries under the Disaster Management Act (DMA). This is compromising parliamentary oversight, opening the door to potential unchecked abuses or excesses of State power. 

The two advocates question the information disseminated by the media, pointing out that statements made by ministers are, at times, contradictory. 

This concern was shared by the DA earlier this month, when it called for National Assembly Speaker Thandi Modise to set up an oversight committee over the executive during the lockdown. The request was rejected by Modise.

"Perhaps most unsettling is the impact that an unlawful exercise of executive power by the NCC would have on parliamentary oversight: shifting executive power from yourself and 28 ministers to yourself and 19 ministers throws the parliamentary oversight mechanisms into complete chaos because it interrupts the ordinary functioning of portfolios and their committees.

"It accordingly appears that the NCC is exercising at least two forms of power: the first of these being statutory regulation-making powers and the second of these being executive powers of coordination and management of the disaster. We see no lawful basis for the NCC to interfere 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," the letter reads. 

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They argue that only the Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma has the powers to issue regulations after consultation with the relevant cabinet member, adding that no other body has any authority to determine regulations, interfere in the process of the determination of regulations, or revise regulations.

"If there is substance to the concern about regulatory interference, it is our opinion that this would directly impugn the lawfulness of the regulations to which the entire nation is currently being subjected. It is, therefore, of the utmost importance that clarification be provided."

Speaking to News24, Cassim said the letter was a friendly clarity-seeking request to the president. He added that, while he understood the burden of Ramaphosa's office, it does not detract from the requirement that all exercises of power must be lawful. 

"You should avoid a situation where you have absolute power and absolute control. The machinery must be guided by the Constitution. You can't discard the judiciary and Parliament. You can't have an executive appointing whomever, as they are doing now, in the country. The conduct of the government must never be unchecked," he said. 

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