EXPLAINER | Tobacco, jogging and movement: How the government makes lockdown decisions


Regulations governing South Africa's nationwide lockdown, from those relating to industries that are permitted to resume operations, to those prohibiting the sale of liquor and tobacco, were made by the Cabinet collectively, experts and analysts believe. 

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However, if the National Coronavirus Command Council (NCCC) usurped Cabinet's powers, the state's disaster regulations can be legally challenged. The council was established by President Cyril Ramaphosa in March to direct the country's response to the Covid-19 outbreak.

Political analysts also believe the implementation and reversal of certain regulations, such the regulation prohibiting tobacco sales, may have been used as part of a larger political agenda. 

The South African government's lockdown faces a number of legal challenges as criticism grows over the seemingly stringent measures and chief among them, is British American Tobacco's insistence that cigarette sales be permitted.

Two of the country's high-profile advocates, Nazeer Cassim SC and Erin-Dianne Richards, also expressed concern last week that the rise of the NCCC posed serious possible constitutional and democratic risks.

How decisions regarding lockdown regulations are made 

The Disaster Management Act, under which the country's lockdown was promulgated, gives Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma sweeping powers to limit the movement of people, close businesses and direct state resources.

The act, however, stipulates that these have to be done in consultation with the relevant minister whose portfolio will be affected and that regulations must specifically be in the interest of protecting the public and deal with the effects of a disaster, among others.  

The act also makes provision for the establishment of an intergovernmental committee on disaster management, consisting of Cabinet members, MECs, and local government representatives. This committee is not the same as the NCCC, as some people have suggested. The NCCC only consists of a select number of Cabinet members, directors general and intelligence officials. 

University of Pretoria public law professor Bernard Bekink believes the NCCC was established as a Cabinet sub-committee because there was no other legal framework for the committee to exist within.

For the NCCC's decisions to be binding, its recommendations have to be ratified by Cabinet, Bekink said.

"Similarly to the function of a company, Cabinet would establish subcommittees to deal with specific operational issues or unique challenges. This is what happened with the command council," Bekink told News24. 

In his weekly newsletter on Monday, Ramaphosa said Cabinet ratified the disaster regulations relating to the prohibition of tobacco sales after it was considered by the NCCC.

Bekink said since the dawn of democracy, the South African Cabinet has adopted an approach which entails making decision through consensus and, if required, by majority vote. 

Concerns over the lockdown's legality 

University of the Western Cape constitutional and public law professor Jaap de Visser said concern should arise when the NCCC takes over Cabinet's powers and Cabinet members feel they need the NCCC for approval. 

De Visser said Cabinet must remain the highest decision-making body, as defined by the Constitution. 

He said the South African Constitution was clear that while the president appointed ministers and assigned ministers' powers, each Cabinet member was collectively and individually accountable to Parliament. 

When a new structure such as the NCCC is established, which is not defined by law, it can, therefore, evade parliamentary oversight.  

"There are currently many questions around the establishment of the NCCC, and while it appears that the government continues to tick all the boxes, if the NCCC starts to frustrate the oversight work of Parliament, it becomes a serious issue," De Visser told News24. 

The DA requested that a parliamentary committee be established to specifically oversee the work of the NCCC, but the deputy speaker rejected their request.

De Visser said specific regulations, such as those relating to tobacco sales, could also be challenged in court if it could be proved that it was not in the best interests of the public or could achieve similar results in a less infringing manner.  

"There are currently serious questions [about] whether a ban on tobacco [sales] is necessary and [whether it] will help to reduce the risk of Covid-19," he said. 

North-West University law professor Elmien du Plessis believes there are grounds to challenge the work of the NCCC for potential overreach. 

Du Plessis said the Constitution required that any decision the president made that has legal consequences, such as the NCCC, must be made in writing. 

"It is desirable that the president gives clarity about this as this can have constitutional implications," Du Plessis said. 

At the time of publication, presidential spokesperson Khusela Diko had not responded to detailed questions. 

The politics behind the NCCC's decisions 

Political analyst and Wits school of governance visiting professor Susan Booysen said while the state's reversal of decisions, such as the one on tobacco sales, might not have been a deliberate political move, it certainly had political consequences for Ramaphosa. 

"The move placed Ramaphosa in a bad light and can lead to a popular fallout with the ANC leading up to the 2021 elections. Anything that will result in a declined electoral outcome will hurt Ramaphosa's position," Booysen told News24. 

She said similar moves and statements by Ramaphosa's Cabinet members negatively impacted his trust and credibility, which could hurt him leading up to decision-making conferences, such as the postponed national general council. 

"We all know Ramaphosa's leadership style: he seeks to build consensus. But he should be leading from the front right now to restore public trust in the state's Covid-19 response."

Political analyst Ralph Mathekga said the national lockdown exposed the fault lines in the ANC's 2017 election, where Ramaphosa won the ANC presidency over Dlamini-Zuma. 

"Why did the ANC Youth League decide to suddenly issue a statement in support of Dlamini-Zuma? Or [why did] the ANC Women's League issue a statement of support for Nkosazana Dlamini-Zuma? Why weren't those statements directed to support the work of the National Coronavirus Command Council? It's because they are playing a political battle," Mathekga said. 

He said the battle wasn't necessarily about the ANC presidency, but was a battle for resources. 

"This is a battle over control of the state's resources. It's about the money and where it goes. This is a battle about which departments get the money and which people get the tenders."

North-West University politics professor Piet Croucamp said he didn't believe that the tobacco decision was a political move because it was agreed upon by the entire Cabinet. 

He said sources told him that Dlamini-Zuma proposed the ban on cigarette sales and her position was supported by Health Minister Zweli Mkhize. 

"Only [Finance Minister] Tito Mboweni opposed the move and he lost the argument on the basis that lives had to be saved," Croucamp told News24. "There was no way that Ramaphosa would've opposed a recommendation by Mkhize."

Croucamp believes that Ramaphosa's position within the ANC strengthened during the coronavirus epidemic because he had no real opponents. 

"[ANC secretary general] Ace Magashule has been quiet because there's no real opposition to Ramaphosa and he therefore has a few allies," Croucamp said. 

"The labour unions, once thought to stand in Ramaphosa's way, are making compromises never thought possible with regards to SAA and other public enterprises. Finance Minister Tito Mboweni will even get his way with a 0% public wage increase. These are not signs of a weak president."

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