Top lawyers threaten legal action over powers of Covid-19 command council

Two lawyers have written to President Cyril Ramaphosa to voice their concerns about the 'unlawful' powers and structure of the national command council.
Two lawyers have written to President Cyril Ramaphosa to voice their concerns about the 'unlawful' powers and structure of the national command council.
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Two top lawyers have written to President Cyril Ramaphosa seeking clarity on the structure and powers of the national command council (NCC) on coronavirus.

The nine-page letter by Luqmaan Hassan on behalf of advocates Nazeer Cassim SC and Erin Richards expresses the pair's concerns over “possible risks of constitutional and democratic malfunctions arising from what appears to be the questionable establishment, structure and functions of the NCC, as well as the noticeable lack of transparency from government about the body”.

The advocates ask Ramaphosa to clarify the legislative or other basis for the establishment of the NCC, and the extent of its powers.

Hassan said his clients are of the view that the NCC appears to be displacing constitutional and statutory functionaries under the Disaster Management Act 57 of 2002, compromising parliamentary oversight and opening the door to potential unchecked abuses or excesses of state power.

Cassim and Richards say they do not see any lawful basis for the command council to interfere in the making of regulations, or exercise any other statutory regulation-making powers under the Disaster Management Act (DMA).

“The scheme of the DMA is simple, and it is the following: On a proper interpretation of section 27(2) of the DMA read with the definition of 'the minister', minister Dlamini-Zuma has the power to issue necessary regulations after substantive consultation with the relevant cabinet member/s. No other body has any authority to determine regulations, interfere in the process of the determination of regulations, or revise regulations,” the letter reads.

“Of significant concern to us are the statements made in your addresses to the nation in which it is explicitly stated that the NCC made the decision to put the nation into an enforced lockdown, and then made the decision to extend the lockdown, and intends determining alert levels going forward.”

Cassim and Richards say the co-ordination and management of disasters is the responsibility of the entire national executive.

“The problem is that the NCC consists of only 19 ministers. That is not the entire national executive. Where are the remaining ministers?” ask the advocates.

“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,” reads the letter.

“In the circumstances, we call for the disclosure of the information listed ... above to be made available to us on or before 1pm on May 4 2020, failing which our clients may consider approaching their ethical bodies for directives concerning potential litigation.”

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