Western Cape High Court
Covid-19 lockdown regulations and National Coronavirus Command Council under legal scrutiny, again
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”.
“… (J) ust 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.
It’s not simply a case of missing transparency in decision-making between the NCCC and Cabinet as the government had argued earlier. Said Ngalwana: “There must be an effective remedy where government has done things without transparency. The remedy is to set it all aside. It is a constitutional imperative”.
…Monday’s court hearing did not just argue against the NCCC as a lawful decision-making structure, but also against the rationality and lawfulness of the Covid-19 regulations.
But the government has maintained all is legally and lawfully above board when it comes to the NCCC, Cabinet and the Covid-19 lockdown regulations.
In both papers and in court, the government reiterated the narrative of the NCCC actually being a Cabinet committee. It first arose in early May 2020 when Presidency Director-General Cassius Lubisi, also Cabinet secretary, responded to a letter of concern by advocates Nazeer Cassim and Erin-Dianne Richards.
But Monday’s court hearing did not just argue against the NCCC as a lawful decision-making structure, but also against the rationality and lawfulness of the Covid-19 regulations.
Central for Advocate Anton Katz are the regulations’ irrationality that effectively make them unlawful and invalid, is in the lack of public participation in rules that affected “the very substance of life”.
And when the public participation process happened – over four days just before the new Level 4 lockdown regulations came into force on 29 April – it was on a policy document, the risk-adjusted lockdown strategy, not the regulations.
“Someone, we don’t know who produces a summary that goes to NatJoints (National Joint Operations and Intelligence Structure) and thereafter to the NCCC,” argued Katz.
“At the same time, this defective report is used to amend draft regulations in government (which have not been seen outside)… A process from a Saturday to a Wednesday can never be rational or meaningful.”
Government’s processes to seek public comment – some 70,000 submissions were received, it later emerged publicly – also was flawed as the platforms for submissions would not necessarily be accessible to, for example, spaza shop owners.
Katz argued the regulations as a whole should be declared irrational and invalid. But if the court decided otherwise, such a declaration was still needed for the winter clothing directives. Although no longer are in force at lockdown Level 3, the court still needed to declare them invalid because the Level 4 lockdown, and with it such clothing regulations – may return.
Coincidentally, from Trade and Industry Minister Ebrahim Patel’s court documents it emerges how the clothing directives may not have been necessarily a clothing sector desire for clarity on what may be produced and sold, but a wish to stave off further law enforcement confrontations.
“They had been concerned about their experience when law enforcement officers visited stores…. In some cases managers ha been arrested for allegedly operating establishments not permitted under the initial lockdown regulations…” said Patel, who recounted how he was asked to “provide clarity to law enforcement officers of what the reference in the regulations to ‘winter clothes’ means.”
And an argument could be made the clothing directive – the ban on open-toed footwear and short-sleeved t-shirts only as undergarments, which cost the government much legitimacy – were not required as part of the efforts to fight the coronavirus pandemic, but were produced to remedy the actions of over-enthusiastic law enforcement.
Monday’s Western Cape High Court hearing is the latest in a series of legal challenges against the NCCC and the Covid-19 lockdown regulations – and the Disaster Management Act – as the government appeals the Pretoria High Court’s recent declaration of unconstitutionality of most lockdown regulations.
Like Maenetje arguing lawfulness of the NCCC, Advocate Marumo Moreane, for government, in Monday’s proceedings emphasised the regulations’ legality.
And that highlights the difference in approach to the exercise of public power – the letter of the law, or legality, against administrative justice, in the spirit of the Constitution and unchecked executive action against accountability and transparency.
Judgement was reserved. DM
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