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.

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.

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.

Full report in The Sunday Independent

Ngalwana opinion piece