- President Cyril Ramaphosa is facing numerous legal threats over the National Command Council
- Three lawyers, Vuyani Ngalwana SC, Nazeer Cassim SC and Erin Richards have challenged the legality of the NCC
- British American Tobacco has also challenged the NCC due to the ban on tobacco sales
President Cyril Ramaphosa is facing a legal challenge over the establishment of the National Command Council (NCC). He is being accused of displacing the constitution and statutory bodies.
Three lawyers are gunning against Ramaphosa, Vuyani Ngalwana SC, Nazeer Cassim SC and Erin Richards. British American Tobacco (BAT) and the Black First Land First (BLF) have also joined in and voiced their objection to the council.
Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma has also been threatened with legal action by BAT.
Briefly.co.za learned that this was after Ramaphosa announced that cigarettes would be back on sale from 1 May, however, in a dramatic U-turn, Dlamini-Zuma announced that the ban on cigarettes would remain.
Ngalwana called for clarity on the powers of the NCC and its legality.
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?”
Cassim and Richards sent letters to Ramaphosa asserting that:
"The “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”.
The two also accused the NCC of centralising power and that it was interfering with the Covid-19 regulations issued by Dlamini-Zuma according to IOL.
We see no lawful basis for the NCC to interfere (sic) 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”.
Political analyst Dr Metji Makgoba warned that Richards and Cassim's letters were not to be trifled with.
“I think this is a damning legal threat because it shows that the coronavirus command council was hastily constituted. So if the president is able to provide a comprehensive response to counter this, that would work on his behalf. It can actually even improve his legitimacy. But if he doesn’t have the capacity to respond to this, it’s going to be a damning indictment on his leadership,” Makgoba said.
BLF President Andile Mngxitama said that the NCC was not legal and was akin to a dictatorship.
“So the powers of the NCC seem to us as powers to subvert any democratic accounting of any rule of law,” said Mngxitama.
Michael Evans of Webber Wentzel, representing BAT, issued their own letter.
“On the evening of April 29, one day ahead of the move to level 4, you announced that the upliftment of the prohibition on the sale of tobacco and vaping products had been reversed, and that the prohibition would be retained during level 4 period. At no stage was our client or anyone else given the opportunity to comment on the proposed retention. All those in favour of the upliftment of the prohibition would have seen it necessary to comment given the very affirmative and positive statement made by the president,” said BAT in the letter.
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