As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
On 15 March this year, President Cyril Ramaphosa announced the establishment of a National Command Council (NCC) “to coordinate all aspects of our extraordinary emergency response” to the Covid-19 crisis. After the President and several ministers stated that the NCC takes binding decisions (and therefore does not merely play a coordinating role), lawyers started questioning the legality of the NCC and any decisions it might have taken. But as the presidency has provided at least three different explanations for how the NCC operates and what functions it has, it is impossible to know whether the many decisions attributed to the NCC are unlawful and hence invalid.
As I am about to try and explain in this short column how the exercise of executive power works in South Africa; why collective cabinet accountability is not what it seems; and why ministers or the cabinet collectively cannot lawfully act as a rubber stamp for decisions taken by the NCC; I feel like a contestant in the Monty Python skit in which each contestant had 30 seconds to provide a summary of Proust’s 4200 page A La Recherche du Temps Perdu, “once in a swimsuit and once in evening dress”. So let me jump right in and answer some questions.
1. What does collective cabinet responsibility mean and who is legally responsible for lockdown regulations
Trick question. There is no provision in our Constitution for collective cabinet responsibility. Instead, section 92(2) of the Constitution states that “Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions”. Individual Ministers, on the other hand “are responsible for the executive powers and functions assigned to them”. This according to the Constitutional Court in Von Abo v President of the Republic of South Africa. The Constitutional Court in Von Abo explained this as follows:
[W]hen [Ministers] exercise the powers assigned to them [by the President], members of the Cabinet must act in accordance with the Constitution. This is significant because once Cabinet ministers are assigned powers and functions by the President they are not mere vassals of the President. They bear the duty and the responsibility to fulfil the duties and functions so assigned which in practice take the form of political and executive leadership of specified state departments.
What this means is that individual Cabinet Ministers are legally responsible for the powers and functions assigned to them by the President. In the case of section 27(2) of the Disaster Management Act, Minister Nkosazana Dlamini Zuma is responsible for the making of regulations “after consulting the responsible Cabinet member”. Constitutionally, there is no requirement that the Cabinet approve the regulations, and most decisions taken by an individual Ministers are never considered or approved by Cabinet.
However – and here it gets a bit confusing – because of the “collaborative nature of the national executive function” (Von Abo again) Cabinet often discusses and approves major policy decision of individual Cabinet Ministers. Recall that Cabinet Ministers are, in the political sense, individually and collectively accountable to Parliament, which means that they are not supposed to criticise (but should instead defend) decisions of the cabinet or of a fellow minister in public because they are all politically (but not legally) accountable for these decisions. In theory, a Cabinet Minister who disagrees with a major policy decision supported by the entire cabinet should either abide by it or resign. Of course, in practice that almost never happens.
It happens sometimes that an individual minister responsible for a portfolio does not agree with cabinet colleagues about a specific matter that falls within the powers assigned to him or her by the President. As the individual Minister is legally responsible for his or her portfolio, when he or she refuses to implement a Cabinet decision or an instruction of the President, the decision cannot legally be implemented. The collective Cabinet cannot legally override the Minister as only the Minster is legally responsible for the decision
For example, in the Zuma era, various Finance Ministers were reluctant to greenlight the then President’s beloved nuclear deal or other wild spending plans by individual cabinet ministers or the cabinet collectively. Despite Cabinet support, the Ministers did not implement the wishes of the President or the Cabinet. At the time many commentators cheered on the Finance Minister for defying the President and the rest of the Cabinet in this manner and for a while the Minister did not face any consequences for the refusal.
Of course, individual cabinet ministers are appointed and can be removed by the President. Where an individual Minister refuses to implement a cabinet decision or an instruction of the President (as he or she is legally permitted to do), the President can fire that Minister if it is politically advantageous or if it is politically possible for him or her to do so. But if the defiant Minister has political backing from within the governing party or from other powerful role players, the firing of a Minister can backfire spectacularly – as the firing of Finance Minister Nhlanhla Nene by then President Jacob Zuma illustrates.
2. What is the National Command Council and does it take legally binding decisions?
It is not easy to answer these questions because the President, presidency, and various Ministers have made directly contradictory statements about the powers and functions of the NCC. What we do know is that the NCC includes, amongst others, members of the Inter-Ministerial Committee. Media reports also suggest that the National Joint Operational and Intelligence Structure (NatJoints) forms the technical backbone of the NCCC. NatJoints is co-chaired by the secretary of defence, Dr Sam Gulube, and Lieutenant General Fannie Masemola from the police, and consists of all directors general of government departments.
However, I have not been able to ascertain exactly who sits on the NCC and according to media reports the presidency has declined to provide that information. The presidency has also claimed that the documents relating to the work of the NCC are “secret”.
When the President announced the formation of the NCC on 15 March, he stated that the NCC was set up to coordinate all aspects of our extraordinary emergency response to the Covid-19 crisis. President Cyril Ramaphosa’s spokesperson Khusela Diko reiterated this week that the NCC “is an operational mechanism tasked with coordination and management of the state of disaster. It has no constitutional standing and where any policy decisions need to be made, these are recommended to Cabinet”.
However, on several occasions over the past weeks the President has stated exactly the opposite, suggesting instead that the NCC had decisions-making powers. Unless one reads “decision” to mean “recommend” or “advise”, the two positions cannot be squared. Specifically the President made the following statements:
A third position on the role and powers of the NCC – seemingly contradicting the two positions set out above – emerged in a “Letter from the Desk of the President”, published in response to the cigarette furore. In this letter the President claimed that his original announcement that cigarette sales would be permitted during level 4 “was based on the view of the National Coronavirus Command Council (NCCC)” before concluding: “As a result, the regulations ratified by Cabinet and announced by Minister Nkosazana Dlamini-Zuma on 29 April extended the prohibition.”
As I understand it, in this version the NCC approved draft regulations, then revised this, after which the cabinet “ratified” the regulations. This version falls in-between the first version (the NCC only advises) and the second version (the NCC decides) by claiming the NCC decides but the decision is ratified by the cabinet.
Given the fact that the presidency has provided three different versions on the role of the NCC, at least two of these versions must be wrong. Two of the three versions, if correct, would also have profound consequences for the legal validity of the entire lockdown.
3. Why does it matter whether the NCC takes decisions or not?
As we have seen, in terms of the Disaster Management Act, Minister Nkosazana Dlamini Zuma, is the Minister empowered to declare a National Disaster and to make regulations after consulting the responsible Cabinet member.
Although this is not legally required, with a momentous decision like this, it would have been politically unthinkable for the Cabinet not to discuss and agree to the declaration of the Disaster and to the regulations promulgated in terms of the declaration. However, legally Minister Dlamini Zuma remains the Minister responsible for both decisions (while the cabinet collectively is accountable to Parliament for the decision). Of course, politically, the entire cabinet is accountable for the decision.
If the NCC is merely a co-ordinating and advisory body, advising the Minister and other cabinet ministers and the cabinet on various aspects of the lockdown, this would be perfectly normal and legally permissible, as nothing stops the cabinet or the minister from taking advice from any person or body.
But if the NCC takes decisions about the lockdown on its own, takes decisions which are then dictated to Minister Dlamini Zuma for formal implementation, or takes decisions that are ratified by the Cabinet, these decisions would be unlawful and invalid. This is because – as the presidency spokesperson indicated – the NCC has no constitutional standing, and its “decisions” therefore would have no force or effect.
It is not clear that the cabinet could “ratify” an unlawful decision of the NCC. The Minister – either alone or collectively with the cabinet – could take an original decision on matters relating to the lockdown (although the Minister remains legally responsible for this), but I am not sure “ratification” of an unlawful decision taken by the NCC would turn the unlawful decision into a lawful one.
It is also not possible to argue that the decision was formally taken by Dlamini Zuma (with or without the cabinet) after a decision by the NCC, because neither the Minister nor the Cabinet are permitted to act under dictation from the NCC when issuing regulations. Just as the Minister is not authorised to issue regulations which were drafted by the tobacco lobby who then instructed her to implement them, she is not permitted to issue regulations drafted by the NCC who then instructed her to implement them.
For all these reasons it is perhaps not surprising that Dr Lubisi, Director General in the Presidency, claimed in his rather intemperate letter to lawyers who asked for clarity on the power and role of the NCC, that their insistence on asking questions about the legality of the NCC were jeopardising “all measures taken to save South African lives and ensure security of public health”. This could only be true if Dr Lubisi believes there is a real possibility that the entire lockdown was invalid because of the unlawful role played in this by the NCC.BACK TO TOP