Our ref: R.

Kanarek/L Hassan/MAT1278 27 April 2020

To: The Presidency

Attention: Honourable President of the Republic
Email: presidentrsa@presidency.gov.za
malebo@presidency.gov.za

cc: The Minister of Cooperative Governance and Traditional Affairs

Email: MandisaMB@cogta.gov.za
PamelaS@cogta.gov.za

Dear Honourable President of the Republic

RE: CONCERNS ABOUT THE CONSTITUTIONAL AND STATUTORY AUTHORITY OF THE

“NATIONAL CORONAVIRUS COMMAND COUNCIL.

1. We ac fo M . Na ee Ca im SC, and M . E in Richa d ( o clien ).

Notwithstanding the fact that both of our clients are practicing Advocates, they
have instructed us in their personal capacities as South African citizens.

2. This letter, the purpose of which is limited to raising questions and requesting
clarification, is addressed to you in your capacity as the Honourable President
of he Re blic, and in o ca aci a he chai e on of he Na ional
Coronavirus Command Co ncil ( NCC ).
3. Our clients are concerned about possible risks of Constitutional and democratic
malfunctions arising from what appears to be the questionable establishment,
structure and functions of the NCC, as well as the noticeable lack of
transparency from Government about the body.

4. O clien ie , on he info ma ion ha he ha e been able o acce o da e,

is that the NCC appears to be displacing Constitutional and statutory
f nc iona ie nde he Di a e Managemen Ac 57 of 2002 ( he DMA ),
compromising parliamentary oversight, and in turn, opening the door to
potential unchecked abuses or excesses of state power.

5. It goes without saying that, if indeed these observations prove correct, it may
impact the Constitutional legitimacy of the state of disaster regulations, and the
lockdown- ecific eg la ion (collec i el he eg la ion ) hich ha e been
issued under the prescripts of the DMA.

6. O clien conce n , he ea on he efo e, and hei e e fo info ma ion

appear below in italics, in their own words.

The information presently available about the NCC

1. We record that finding information pertaining to the NCC has been a task
fraught with immense difficulty, and frustration. In a Constitutional democracy,
information that pertains directly to the governance structures of the Republic
should be easily accessible, especially in a state of disaster. Citizens cannot
exercise their rights when they do not have access to the information necessary
to do so.
2. We are alarmed by the lack of available information about the NCC,
especially given the power that the body is wielding. We see no justifiable
reason for the failure to make that information publicly available. We trust that
this was a good faith oversight, which will be expeditiously remedied.

3. It should be noted that in our search for information, the reports by the media
have been unhelpful, often conflating the NCC with other separate and
distinct bodies such as the presidential coordinating council, and various
established inter-ministerial committees. The fact that confusion of this sort
abounds in the media only serves to further buttress our point about the blanket
confusion pertaining to the functions of the NCC during this COVID-19
pandemic time.

4. Furthermore, your Ministers, and government communications teams have also

been making contradictory and confusing remarks about the NCC, describing
its functions as encompassing ever thing from being the center of information
sharing to co-ordinating and implementing measures to contain the virus to
leading the countr s response to the pandemic .

5. Accordingly, given the extraordinary level of confusion, for purposes of this

letter, we have elected to rely only on information that is sourced from
Government s official ne s portals, and our o n addresses to the Nation,
which information is the following:

5.1. The NCC is comprised of nineteen Ministers (this information was found on
Government s official ne s account);

5.2. The NCC is not just an advisory body. It has significant decision-making
powers. This much appears from your addresses to the nation, in terms of
 which we know that the NCC has made the below-mentioned decisions or
has the below-mentioned decision-making powers:

5.2.1. In your address dated 24 March 2020, you stated that the NCC was
the body who had made the determination to enforce a twenty-
one day nation-wide lockdown;

5.2.2. On 3 April 2020, Minister Bheki Cele, in a statement quoted on

government s ne s ebsite, said that the NCC had revised the
regulations.

5.2.3. In your address dated 9 April 2020, you stated that NCC was the
body who had determined that the lockdown should be
extended.

5.2.4. Under the extended lockdown plan, as announced by you on 23

April 2020, the NCC has the power to determine coronavirus alert
levels, and has already made the determination that the current
alert level is to be positioned at level four.

5.3. We assume that these statements are an accurate reflection of the position
but remain open to correction.

5.4. It accordingly appears that the NCC is exercising at least two forms of
power: the first of these being statutory regulation-making powers (see the
example in 5.2.2 above), and the second of these being executive powers
of co-ordination and management of the disaster (see the examples in
5.2.1, 5.2.3, and 5.2.4 above).
 The NCC i e fe e ce i he c d eg a i

6. 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.

7. The scheme of the DMA is simple, and it is the following:

7.1. On a proper interpretation of section 27(2) of the DMA read with the
definition of the Minister , Minister Dlamini-Zuma has the power to issue
necessary regulations after substantive consultation with the relevant
Cabinet member/s.

7.2. No other body has any authority to determine regulations, interfere in the
process of the determination of regulations, or revise regulations.

8. If there is substance to the concern about regulatory interference, it is our

opinion that this would directly impugn the lawfulness of the regulations to
which the entire nation is currently being subjected.

9. It is therefore of the utmost importance that clarification be provided.

NCC e e ci e f e ec i e e .

10. Of significant concern to us are the statements made in your addresses to the
nation in which it is explicitly stated that the NCC made (i) the decision to put
the nation into an enforced lockdown, and then (ii) made the decision to
extend the lockdown, and (iii) intends determining alert levels going forward.
11. Those decisions are quite evidently decisions necessary to co-ordinate and
manage the disaster as declared.

12. The co-ordination and management of disasters is explicitly dealt with in

section 26(1) of the DMA, and they are the responsibility of the entire national
executive (being yourself and your twenty-eight Ministers).

13. The problem is that the NCC only consists of nineteen Ministers. That is not the
entire national executive. Where are the remaining Ministers?

14. On its current composition, the NCC appears to us to constitute a centralization

of power that is impermissible under the DMA.

15. To the extent that such centralization is permissible, the NCC would have to be
conducting its functions under a lawful delegation from the national executive.

16. However, our attempts to locate any official documentation establishing the
NCC or providing for a lawful delegation of functions have yielded no results. It
appears that such documentation does not exist, alternatively, if it does exist,
it has not been made publicly available.

17. Absent a lawful establishment of the NCC, and a permissible and lawful
delegation to it by the national executive, we do not believe that the NCC had
any authority to make determinations such as the determination to put the
country into lockdown, extend the lockdown, determine alert levels, or exercise
any other power that is currently vested in the entire national executive.

18. To the extent that the NCC has made these determinations without valid
authority, our concern is that this might also taint the legality of the lockdown
regulations.
19. Perhaps most unsettling is the impact that an unlawful exercise of executive
power by the NCC would have on parliamentary oversight: shifting executive
power from yourself and twenty-eight Ministers, to yourself and nineteen
Ministers throws the parliamentary oversight mechanisms into complete chaos
because it interrupts the ordinary functioning of portfolios, and their
committees.

20. It is therefore likewise urgent that clarity be provided on this point.

Information requested

21. In the circumstances, we respectfully request clarification in respect of the

following questions:

21.1. The legislative or other basis for the establishment of the NCC; and

21.2. The extent of the powers being exercised by the NCC.

Conclusion

22. The decision to address this correspondence to you was not taken lightly, and
it is now addressed to you in the spirit of cooperation and democratic
vigilance. We emphasize that is not our intention to undermine the
Government s response to the COVID-19 pandemic. We are mindful of the
highly pressurized and time-sensitive environment in which you are operating,
and the extraordinary balancing acts that are being required of you at this
time.

23. However, our understanding of the burden you shoulder does not detract from
the requirement that all exercises of power must be lawful, nor does it in any
 way mitigate our concerns. The purpose of our letter is accordingly to procure
sufficient certainty about the NCC to reassure ourselves that democratic
checks and balances remain in place, and that the regulations which continue
to severely circumscribe the rights of all South Africans subsist within the
boundaries of our Constitution. We respectfully call for greater transparency by
your Government during this time regarding governance structures that are in
place, and governance decisions that are being taken.

24. We further record that the positions adopted in this letter have been
developed on the basis of extremely limited information provided to date
about the NCC, and our rights remain reserved to alter our position as more
information becomes available. To the extent that our observations may prove
factually incorrect, we will be pleased to acknowledge same. However, in the
event our observations prove correct, we trust that the necessary steps will be
taken to remedy the defects.

25. We are hopeful that the questions raised in this letter can be resolved in a
cooperative manner.

Sincerely
Nazeer Cassim SC &
E i Dia e Richa d

6. In the circumstances, we call for the disclosure of the information listed in

paragraph 21 above to be made available to us on or before 13h00 on 4 May
2020, failing which our clients may consider approaching their ethical bodies for
directives concerning potential litigation. However, please note that we
understand the complexity of this matter, and we are amenable to extending
 that deadline (within reasonable limits) should you require additional time as long
as same is timeously communicated to us.

7. Anticipating your response.

Yours faithfully

_________________
Luqmaan Hassan
RHK ATTORNEYS