Picture: 123RF/STOCKSTUDIO44
Picture: 123RF/STOCKSTUDIO44

President Cyril Ramaphosa, trade & industry minister Ebrahim Patel, co-operative governance minister Nkosasana Dlamini-Zuma and the government are being hauled to court by a group of UCT students who argue the national command council (NCC) is unconstitutional.

The students, along with a few recent graduates, are part of a group called Progress, which is arguing that the NCC violates the principle of accountable and transparent government.

The president has repeatedly said it’s the NCC that makes the decision regarding which regulations will reduce the spread of Covid-19 and about any downgrade or upgrade in the stage of lockdown.

In lengthy legal papers, the students say there is no provision for the NCC in the disaster management act: it’s a body with “no legal validity, yet it seemingly managed and made decisions affecting all South Africans’ rights”.

While the Disaster Management Act does allow for a response centre, it doesn’t provide for “a parallel structure” operating in secrecy. The students say they were forced to approach the court after the NCC and the ministers failed to “adhere to the rule of law”.

“They failed to promote and respect constitutional rights and observe public administration values of transparency, openness and accountability,” they argue.

It might seem unusual that a group of students are challenging the government in this way, not least because students don’t typically have the deep pockets required to fund legal cases.

When asked about this by the FM, the students’ lawyer, Ashley Adriaans, would not reveal more than to say: “The students have initiated this process as concerned citizens of SA. They have received enormous support from many other concerned individuals and corporates in many forms, including funding of the litigation.”

The legal challenge was originally due to be heard today, May 29, but it has been delayed and now looks likely to be heard around June 15.

Even though SA is due to shift to lockdown level 3 on Monday, Adriaans says the case will continue. “Though alert level 3 will take effect from June 1, many of our fellow South Africans are still under a ‘hard’ lockdown, and their livelihoods are being [affected] on a daily basis,” he says.

The students’ legal action follows on the heels of similar arguments made by advocates Nazeer Cassim and Erin-Dianne Richards, who wrote to Ramaphosa suggesting that the NCC wasn’t lawful as it acted without any oversight or checks on its powers. “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 28 ministers to yourself and 19 ministers throws the parliamentary oversight mechanisms into complete chaos,” Cassim and Richards wrote.

At the time, Cassim told News24: “You should avoid a situation where you have absolute power and absolute control. The machinery must be guided by the constitution. You can’t discard the judiciary and parliament.”

Getting noticed

The student group – which includes Tami Jackson, Duwayne Esau, Neo Mkwane, Riaan Salie, Scott Roberts and Lindo Khuzwayo – would speak to the FM only through Adriaans.

They will be encouraged by the government’s recent approach to other Covid-19 court actions, in which just the threat of a legal challenge led to rules being changed.

For example, civil rights group Dear SA attempted to have the e-commerce ban that was enacted by Patel shown to be irrational in court. But before the case got that far, Patel lifted the ban. The regulations that were subsequently gazetted by Patel quoted a paragraph word for word from the Dear SA legal letter, which led the pressure group to claim its legal challenge had worked.

Adriaans points out that Ramaphosa did not specifically cite the NCC as being behind the decision to go to stage 3, which suggests he may be aware that the body is unlawful.

“The president did not mention the NCC in his latest address to the nation at all, but advised that the cabinet had decided on the move from alert level 4 to level 3,” he says.

However, the students are mounting another argument too: that some of the regulations are unfair, inconsistent and irrational, as they don’t reduce the spread of Covid-19, which undermines the purpose the lockdown was meant to serve.

The students’ constitutional argument is that while section 36 of the constitution allows the state to limit citizens’ rights, it does not allow such strict limits on movement, working and freedom as has been imposed when it would be possible to control the virus with fewer limitations.

Also, the students argue, Patel’s reference to trying to improve competition and Dlamini Zuma’s to achieving structural social change as justification for decisions are not permissible reasons for regulations enacted under the disaster management act.

While any law made by the NCC could be struck down if the court agrees it is an unlawful body, the students aren’t asking for this. Rather, they want the disaster regulations to be redrafted within 30 days, following a constitutional, rational and transparent process.

“We submit that the entire lockdown regime ..., including the various alert levels, is tainted with illegality, and that it is only the courts that can rectify such unconstitutionality and illegality.”

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