From presidential “loose use of language”, the secrecy of records of Cabinet, or the National Coronavirus Command Council, to fair administrative justice. All these issues were argued before the Western Cape High Court on Monday in another legal challenge to the Covid-19 lockdown.
No one in any way or with a single word argued against the need to save lives in South Africa’s coronavirus public health emergency. Under scrutiny were the scope and the rationality of the Covid-19 lockdown regulations – and the lawfulness of the National Coronavirus Command Council (NCCC) that has emerged as central in South Africa’s response.
In Monday’s virtual court hearing government argued the NCCC is a Cabinet committee that even as it took a decision, if Cabinet later endorsed this, it amounted to a Cabinet decision – and therefore was lawful.
Or as Advocate Ngwako Maenetje put it to Western Cape Judge Rosheni Allie and Judge Elizabeth Baartman. There is nothing wrong by NCCC taking preliminary decisions that will go to Cabinet. There is also nothing wrong with a Cabinet committee (the NCCC) taking decisions because of the principle of Cabinet collectivity”
And like Cooperative Governance Minister Nkosazana Dlamini Zuma in her court papers talking of “imprecise language”, the advocate argued confusion over the command council’s decisions may have arisen could be due to “loose use of language”.
just because the president’s speeches referred to NCCC decisions, even if that was accepted, they are still decisions of Cabinet on the basis of Cabinet collectivity,” argued Maenetje, adding later
“It doesn’t matter the president announced the NCCC made a decision if Cabinet subsequently meets and endorses that decision…”
The eight applicants, crucially, raised how President Cyril Ramaphosa had told South Africans the NCCC had “decided” on actions in three addresses to the nation – announcing the lockdown on 23 March, extending the lockdown on 9 April and announcing on 23 April the lockdown would be eased to Level 4.
As the Constitution vests executive decision making with the president and Cabinet, the legal argument is that a NCCC decision as announced in the presidential addresses to the nation would not be valid, or lawful.
Parliamentary replies by Ramaphosa and his Minister in the Presidency, Jackson Mthembu, earlier in June 2020 also indicated how the NCCC effectively is the whole Cabinet, further blurring lines in executive decision-making.
During Monday’s six-hour virtual court hearing, Judge Baartman asked Maenetje whether the public was not entitled to know who took the lockdown decisions that have impacted extensively on South African lives.
“That is more a question of transparency. One can request Cabinet minutes, they can be made public subject to Cabinet secrecy,” said the advocate, who had earlier stressed what he called “principle of Cabinet secrecy”.
The record of these Covid-19 lockdown decisions had been requested for this court hearing – and refused. Or as the court papers said in criticising the applicants for going to court without the record of decision, “in any event, they would not be entitled to the minutes or documents of the Cabinet, including a structure of Cabinet, the NCCC”.
Advocate Vuyani Ngalwana argued the NCCC was unlawful because no law nor the Constitution allows for such a structure, even if just to coordinate, as this is the function of the Disaster Management Centre that would also have to set the alert levels.
“If the NCCC has been unlawfully established… Any functions it has performed or any decision it has made or any co-ordination it has performed, is unlawful,” said Ngalwana, adding later
“There is no provision in the Constitution, there is no provision in the Disaster Management Act that confers a power on the president and or the Cabinet to establish a committee like the NCCC”.
And if there’s no such, then with the NCCC having taken decisions, or recommended what Cabinet should decide, effectively, the whole Covid-19 lockdown would be unlawful and invalid.
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