With COVID-19 pandemic as the new ruse for political dictatorships how much leash will the people of South Africa allow Ramaphosa and his draconian National Command Council?
Lawyers threaten Ramaphosa’s National Command Council
by Manyane Manyane
JOHANNESBURG- President Cyril Ramaphosa has come under fire from some prominent lawyers, pro-cigarette lobby groups and politicians over the legality of his Covid-19 National Command Council (NCC) and its alleged overreach during the national lockdown.
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 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.