In another letter directed at President Cyril Ramaphosa, two lawyers have given the Presidency until Monday to clarify what decision-making powers were given to the National Coronavirus Command Council (NCCC).
The two lawyers are also questioning who made the decision to ban the sale of cigarettes during the nationwide lockdown to curb the spread of the coronavirus.
Advocates Nazeer Cassim SC and Erin-Dianne Richards have responded to a sharply worded letter by the director-general in the Presidency, Dr Cassius Lubisi.
In the 14-page response, dated 8 May, the two said they found it suspicious there was no transparency in the NCCC which seemed to be making decisions on the pandemic.
In their initial letter to Ramaphosa, the two high-profile advocates sought clarity on the legislative reasons or other bases for the establishment of the NCCC as well as its powers.
In his response, Lubisi said the relevant ministers took decisions in terms of legislation assigned to them.
He used his letter to urge the pair to come up with alternatives instead of criticising the government and cautioned them to act in accordance with their role of officers of the court.
“Our clients are surprised by the tone of the letter. To the extent that the president authorised the issuing of the letter, it is regrettable,” the letter in response to Lubisi read.
“More perturbing, however, than the tone of the letter is its content. The letter fails to answer the questions raised. The letter only adds to the confused communication that has plagued government’s statements about the NCCC to date.”
Richards and Cassim added the Presidency was unable to explain where the NCCC sourced its decision-making power legally.
They said they could find no provision in the Disaster Management Act that countenanced such a delegation to the NCCC.
In their view, the body could be one of two things: It was either a “co-ordinating body”, not entitled to any decision-making powers; or it was a lawfully established decision-making body exercising powers delegated to it by the president and countersigned by Cabinet as required by the Constitution.
“In this case, the documentation supporting this delegation should be easy to produce.”
They said the “new power that was suddenly being wielded by the NCCC seemed to us to mark an about-turn from the position articulated by the President in his first address [to the nation].
“We were concerned, but considered that it may have been a slip of the tongue or a communication malfunction.”
Motivating their argument, the advocates questioned Ramaphosa on his initial decision to allow the sale of cigarettes under level four of the lockdown which was soon recanted. Shortly after, Cogta Minister Nkosazana Dlamini-Zuma announced the Cabinet had reversed the decision after deliberation.
This left many in the country confused and questioning the president’s powers within his own Cabinet.
“If the NCCC is a properly established, constituted and authorised body, it would not need to seek ratification of its decisions. To the extent that the NCCC is not properly established, constituted and authorised, it is our opinion that any decision it has taken or will take is unlawful, and it is doubtful that Cabinet is empowered to ratify an unlawful decision by an unlawful body.”
They said they “were amenable to engaging with Ramaphosa which is in the interests of all concerned”, by Monday at 13.00pm.
Ramaphosa this week denied there was any agenda in reversing the decision to allow tobacco sales.
He told reporters in KwaZulu-Natal the only interests they had was the health of citizens in making the decision.