Legal pressure builds on Ramaphosa

President Cyril Ramaphosa is under pressure on several fronts, not least over the legality of his Covid-19 National Command Council (NCC) and its alleged overreach in deciding what is and what isn’t allowed under the lockdown, notes Legalbrief. In separate lawyers’ letters, interviews and an opinion piece, three lawyers – Advocates Vuyani Ngalwana SC, Nazeer Cassim SC and Erin Richards – cigarette giant British American Tobacco (BAT) and the Black First Land First (BLF) have accused Ramaphosa of illegally establishing the NCC and allowing it to displace constitutional and statutory bodies, says a report in The Sunday Independent. BAT also threatened legal action against Co-operative Governance & 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 (see separate report below). In an opinion piece in The Sunday Independent, Ngalwana has added his voice to calls for clarity regarding the legality and powers of the NCC. ‘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?’ writes 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 NCC? If so, what piece of legislation, or constitutional provision, did he cite as conferring upon him the power so to do?’

These questions followed a challenge issued by Cassim and Richards. In a lawyer’s letter sent to Ramaphosa – giving a deadline of 1pm today for a response  – they say the NCC ‘appears to be displacing the constitutional and statutory functionaries under the Disaster Management Act (DMA), 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. The Sunday Independent quotes political analyst Dr Metji Makgoba as saying Cassim’s and Richards’ letter was ‘serious’ because it questioned the constitutionality of the NCC, accountability measures and decision-making processes. He said the implication of the legal threat was that Ramaphosa could be found to have violated the Constitution. ‘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. He said the NCC gave Ramaphosa absolute power, which he used to benefit those who donated to his 2017 campaign to become ANC president.

Ramaphosa may also be facing a Constitutional Court battle over the ending of the lockdown, the National Peace Commission (NPC) warned yesterday. According to a report in The Mercury, Durban businessman Peter Munns said the commission had sent a letter of demand to the President and Health Minister Zweli Mkhize, in which it alleged that the implementation of the lockdown was ‘procedurally irregular and unconstitutional’ and contrary to the government’s Batho Pele principles. The organisation’s attorney, Thembinkosi Luthuli, said the NPC was formed in 2015 ‘to build social, cultural and racial cohesion in SA for the purposes of accountability and transparency on the part of all public servants’. He said it represented ‘a wide sector of civil society’ including religious, business and traditional leaders in the formal and informal sectors, as well as ‘those living in informal settlements who have been negatively affected by the decisions taken by the present government’. ‘Extensive research has shown that there is clearly a conflict of interest and opinion on this Covid-19 virus and that it requires investigation and responsible action on the part of all governments,’ Luthuli said in the letter. ‘The Minister of Health, in particular, is requested to provide the reasons and justification for an extreme national programme of safety and security, when this was clearly a medical crisis that did not require the deployment of the military or the imposition of a police state. Furthermore, the state has imposed regulations that would normally be imposed under a State of Emergency and not a State of Disaster.’

Luthuli went further, pointing out that on the basis of only 60 reported cases of Covid-19, a national State of Disaster had been declared, while the country’s more than 60 murders a day had not been dealt with as a priority. ‘On the basis of more than 56 000 reported deaths from tuberculosis in 2019 and more than 18 000 deaths from influenza in the same period, the schools and also all the churches, mosques, temples and places of religious worship were never closed. The military lockdown is extreme,’ he said. Presidential spokesperson Khusela Diko yesterday confirmed receipt of the letter, notes The Mercury. ‘The Presidency is still studying the correspondence received from Luthuli Attorneys to understand the legal arguments set out therein. It will be responded to once this has been ascertained,’ Diko said.

Government risks alienating an increasingly restless and desperate public with some of its new restrictions under the lockdown, eroding the goodwill previously built up, according to various experts quoted in a Sunday Times report. Human rights specialist Yasmin Sooka reportedly told the newspaper that regulations and the reasons for them always have to be clear, with a balance struck between containing the spread of the virus and reasonable behaviour. ‘Everyone was initially impressed with the first steps government took. That is, however, changing with a growing approach towards ensuring the lockdown is enforced through security. You do not want to be policed with brutality, which is what is happening. Decisions that have been taken, such as unbanning cigarettes, are being reversed without any reasonable explanation. In a period like this, it's vital that human rights are not eroded. The President will also have to really look at the behaviour of some of his Ministers who do not add value to the current situation.’ Constitutional law expert Wesley Hayes said the government risks turning the country into a ‘nanny’ state with its ban on alcohol and cigarettes. ‘The curfew makes no sense. I hope the government takes us into their confidence and explains the rationale behind this,’ he said.

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