The government’s response to Advocates Nazeer Cassim SC and Erin-Dianne Richards on the detail and legitimacy of the country’s Covid-19 decision-making raises serious questions about its trust in the people of South Africa.

On 27 April, Advocates Cassim and Richards wrote a letter, through their attorneys, DHK Attorneys, to President Cyril Ramaphosa expressing grave concern over the legitimacy of the National Coronavirus Command Council (NCCC).

They asked to be reassured that democratic checks and balances remain in place, and that the regulations which circumscribe the rights of all South Africans under Covid-19 do so within the limits of the Constitution.

They also invited the President to provide documentation supporting the answers given. Specifically, they sought:

  1. Clarity regarding the legislative or other basis for the establishment of the NCCC; and
  2. The extent of the powers being exercised by the NCCC.

The writers said that in the absence of a reply they ‘may consider approaching their ethical bodies for directives concerning potential litigation’.

The formal reply to the letter fell to one ‘R Cassius Lubisi, PhD, Director-General and Secretary of the Cabinet’. The tone of the reply was condescending, if not contemptuous:

‘There are seemingly a number of trite principles of our constitutional democracy that we feel enjoined to set out in lights of the contents of your letter.’

We summarise Lubisi’s letter of 4 May and the advocates’ detailed reply, which neatly describes the problems raised by the advocates initially.

Lubisi said:

  1. Members of the Cabinet are accountable collectively and individually For the exercise of their powers and responsibilities;
  2. They must regularly report to Parliament on matters under their control;
  3. The President assigns administration and functions in terms of section 97 of the Constitution;
  4. There are no rules to direct the Cabinet on how it works. The cabinet works through the choice of the clusters;
  5. The separation of powers is central to our constitutional democracy and the three arms of government keep each other accountable.
  6. The administration and functions of the DMA (Disaster Management Act, 57 of 2002) were assigned to Dr Nkosazana Dlamini-Zuma, who was empowered to issue the necessary regulations.
  7. Nothing deprived other cabinet members of their powers and where their authority has been required, they have fulfilled the task. The ministers have been reporting to their respective Portfolio Committees.

Lubisi ends:

‘We trust the above addresses your concerns. Should it not be, we invite your clients to constructively propose alternatives rather than threaten litigation. Their insistence on putting in jeopardy all measures to save South African lives and ensure security of public health is not commensurate in our respectful view with their positions as officers of the court.’

Pomposity and condescension aside, Lubisi’s letter doesn’t answer the questions asked.

In their response to Lubisi’s letter on 8 May, the advocates reminded Ramaphosa of the basic values governing public administration in terms of section 195 of the Constitution of the Republic, 1996. Section 195 prescribes that the President and the government act with a high standard of professional ethics, and ensure transparent governance facilitated by access to information.

The advocates then elaborated upon the problems they had raised initially, the first being the ‘mounting inconsistencies about the NCCC’.

The first anyone heard of the NCCC was during the President’s address to the nation on 15 March. Three pieces of information about the NCCC were communicated by Ramaphosa:

  1. The NCCC was ‘established’;
  2. The President would chair the NCCC; and
  3. The NCCC would ‘co-ordinate’ South Africa’s response to the Covid-19 pandemic.


The impression was that the NCCC would not be taking decisions and its activities would be limited to:

  1. Assisting government to internally align and administratively coordinate its response to the pandemic;
  2. Facilitating priority programmes; and/or
  3. Providing a consultative platform for government, which would aid its expeditious response to the pandemic.

The advocates stated there would have been nothing wrong in that approach. Cabinet would have been fully within its rights to establish such an entity, provided that the NCCC was not making decisions (our emphasis).

On 24 March, Ramaphosa said that the ‘[NCCC] has decided to enforce a nationwide lockdown’.

Now the NCCC had been promoted from an internal coordinating body to a body making high-level policy decisions that fell within the purview of the entire National Executive in terms of the DMA. This does not appear lawful.

Although cabinet has discretion on the mechanisms it adopts to coordinate its internal administrative functioning, the advocates argued that this discretion does not extend to allowing Cabinet to centralise its powers into a select group of Ministers without an express and lawful delegation (our emphasis).

An express and lawful delegation that is constitutionally permissible would require the NCCC to fall within the ambit of an organ of state.

The source of the NCCC’s decision-making power was not explained in Ramaphosa’s communications. There was no indication that the NCCC was ‘an executive organ of state’. Neither the Constitution nor the DMA countenance such delegation.

This new power of the NCCC marked an about-turn from Ramaphosa’s position in his first address.

In the following days, ‘there were slews of communications from Ministers indicating that the NCCC was prescribing the contents of regulations, making decisions to “amend” regulations, and requesting Ministers to “feed decisions into its structures”’.

Not only was the government withholding clear communication about the NCCC from the public, but the media also had not been properly briefed on the NCCC’s role.

In his address on 9 April, the President said:

‘After careful consideration of the available evidence, the [NCCC] [had] decided to extend the lockdown’.

The communications about the NCCC’s decision-making functions continued to spiral, when in his address on 23 April, Ramaphosa stated:

‘The [NCCC] met earlier today and determined the national coronavirus alert level’.

By now Ramaphosa had expressly stated, on three occasions, that the NCCC was making high-level policy decisions.

Subsequent to the advocates’ first letter of 27 April, two events are important.

The first is Ramaphosa’s weekly letter, ‘From the desk of the President’ on 4 May, in which he wrote:

‘There has been much public comment on government’s decision to extend the prohibition on the sale of tobacco products into level 4. A decision like this is bound to be controversial, but it is wrong to suggest that there are Ministers or a President doing and saying whatever they want on this matter.

On 23 April, I announced that cigarette sales would be permitted during level 4. This was based on the view of the National Coronavirus Command Council (NCCC), and which was contained in the draft framework that was published for consultation. After careful consideration and discussion, the NCCC reconsidered its position on tobacco.’

The advocates said the wording was ‘noticeably vague’: they suggested an intentional effort to avoid the question of who exactly took the decision to ban tobacco. However, the phrase ‘the NCC reconsidered its position’ indicated that the NCCC was the body responsible for the decision.

Ramaphosa’s letter goes on:      

        ‘As a result, the regulations ratified by Cabinet and announced by Minister Nkosazana Dlamini-Zuma on 29 April extended the prohibition.’

This sentence made no sense to the advocates. Regulations do not need to be ratified by the Cabinet. The DMA empowers Minister Dlamini-Zuma to make regulations in consultation with the relevant cabinet Ministers; no ratification is required (our emphasis).

If Ramaphosa meant to suggest that the NCCC’s decision to maintain the ban had been ratified by cabinet, it made no sense. If the NCCC was a properly established, constituted and authorised body, it would not need to seek ratification of its decisions.

Further, if the NCCC was not properly established, constituted and authorised, any ‘decision’ it had taken or would take would be unlawful, and ‘it is doubtful that Cabinet is empowered to ratify an unlawful decision by an unlawful body’.

The second event is the response to the advocate’s letter by Lubisi in which he states that the NCCC is a coordinating body like ‘any other cabinet structures (sic)’.

The advocates assumed that by ‘other cabinet structures’, Ramaphosa meant bodies like cabinet clusters or inter-ministerial committees. If so, it completely contradicted Ramaphosa’s previous statements that the NCCC is a body that makes decisions.

Coordinating bodies like cabinet clusters are exactly that; coordinating bodies to streamline internal government functions. They are not decision-making bodies.

In summary, either the NCCC is:

  1. A ‘coordinating body’ in which case it is not entitled to exercise any decision-making powers; or
  2. It is a lawfully established decision-making body exercising powers delegated to it by Ramaphosa and counter-signed by Cabinet as required by the Constitution. In this case, the documentation supporting this delegation should be available.

The advocates re-iterated their call for the same answers and documentation they requested in their original letter.

‘The fact that certain parliamentary committees are sitting for briefings, is completely irrelevant. The question is not whether the committees are sitting but whether parliament can substantively and effectively perform its functions. In our opinion, parliament self-evidently cannot effectively exercise oversight over a body when it does not know how that body is established or what, exactly, it is doing.’

In an article in the Sunday Times on 10 May, the Presidency admitted to holding back information from the public on the pandemic ‘to avoid panic’.

Ramaphosa’s spokesperson, Khusela Diko, conceded this after experts questioned why the Covid-19 modelling data was being kept secret.

‘We don’t want to put these models out to the public as if they are the gospel truth,’ Diko said. ‘There is an element where we want to avoid panic in communities, and we’re also mindful of the stigma of the virus.’

Diko’s comments epitomise the low regard the government has for our ability to understand that the models may not be completely reliable. Perhaps if we are trusted with the information, the government wouldn’t be perpetuating a stigma that it should be doing everything to dispel.

Or is there something else at play?

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editor

Rants professionally to rail against the illiberalism of everything. Broke out of 17 years in law to pursue a classical music passion by managing the Johannesburg Philharmonic Orchestra and more. Working with composer Karl Jenkins was a treat. Used to camping in the middle of nowhere. Have 2 sons who have inherited a fair amount of "rant-ability" themselves.