The presidency, speaking through its legal representation, has asked the attorneys who questioned the constitutionality of the National Command Council (NCC) in charge of the response to the novel coronavirus “to constructively propose alternatives rather than threaten us with litigation”.
This request was made in a letter drafted the by the presidency’s legal representation in response to a legal letter originally addressed to President Cyril Ramaphosa.
In the nine-page letter, advocates Nazeer Cassim and Erin Dianne Richards (through RHK Attorneys), requested clarity on the powers wielded by the NCC.
The pair registered they were concerned about the possible risks of constitutional and democratic malfunctioning.
This, they say, arises from what appears to be the questionable establishment, structure and functions of the NCC, as well as the noticeable lack of transparency from the government about the body.
“The problem is that the NCC only consists of 19 ministers. That is not the entire national executive. Where are the remaining ministers? On its current composition, the NCC appears to us to constitute a centralisation of power that is impermissible under the Disaster Management Act,” the letter reads.
The two then threatened to take the matter to their ethical bodies for possible litigation if the president failed to respond.
In response, the presidency reiterated a few constitutional principles, including the fact that “no rules exit to direct the cabinet on how it organises its work to ensure the best possible coordination of its members and ideal means of fulfilling their functions.”
Additionally, the presidency maintains that the executive is not responsible for how and when parliament chooses to exercise its oversight function and cannot direct it to perform its constitutional obligations in whatever manner or at whatever time the executive thinks is best.
According to the presidency, parliament is solely responsible for its own process.
The presidency also felt that it bore repeating that the administration and functions of the Disaster Management Act 57 of 2002 were assigned to the cabinet member responsible for Cooperative Governance and Traditional Affairs (Cogta) – a position currently held by Dr Nkosazana Dlamini Zuma.
“Nothing in the act deprives other cabinet members of their assigned powers and functions and they have been acting accordingly.”
“When you speak in your letter of other ‘interfering’ with a minister’s power to determine regulations, we trust you appreciate that cabinet acts as a collective and in a disaster related to a communicable disease, responsibilities of many cabinet members may be affected by the actions of the cabinet member responsible for the administration of the act,” added the presidency after laying out the process under which the NCC was established.
Furthermore, the presidency completely dismissed Cassim and Richards’ claims of a lack of accountability from ministers and other stakeholders.
“We trust the above addresses your concerns. Should it not, we invite your clients to constructively propose alternatives rather than threaten us with litigation.
“Their insistence on putting in jeopardy all measures taken 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,” concluded the presidency.