On 15 March, President Cyril Ramaphosa announced the establishment of a National Coronavirus Command Council (NCCC) “to coordinate all aspects of our extraordinary emergency response” to the Covid-19 crisis. After the president and several ministers stated that the NCCC takes binding decisions (and therefore does not merely play a coordinating role), lawyers started questioning the legality of the NCCC and any decisions it might have taken. But as the Presidency has provided at least three different explanations for how the NCCC operates and what functions it has, it is impossible to know whether the many decisions attributed to the NCCC 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 NCCC; I feel like a contestant in the Monty Python skit in which each contestant had 30 seconds to provide a summary of Proust’s 4,200 page À la recherche du temps perdu, “once in a swimsuit and once in evening dress”. So let me jump right in and answer some questions.

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 is 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 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 decisions 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 minister 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.

What is the National Coronavirus Command Council and does it make 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 NCCC. What we do know is that the NCCC includes, among 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 NCCC 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 NCCC are “secret”.

When the president announced the formation of the NCCC on 15 March, he stated that the NCCC 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 NCCC “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 NCCC had decision-making powers. Unless one reads “decision” to mean “recommend” or “advise”, the two positions cannot be squared. Specifically, the president made the following statements:

• On 24 March 2020 in an address to the nation the president said that the NCCC told us that he “has decided to enforce a nationwide lockdown”.
• On 9 April, the president told the nation that “after careful consideration of the available evidence, the [NCCC] [had] decided to extend the lockdown”.
• On 23 April, the president told the nation that the NCCC “met earlier today and determined the national coronavirus alert level”.

Various Cabinet ministers have also claimed over the past weeks that one or other decision about the regulations or their amendment were taken by the NCCC.

A third position on the role and powers of the NCCC – 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 NCCC approved draft regulations, then revised this, after which the Cabinet “ratified” the regulations. This version falls between the first version (the NCCC only advises) and the second version (the NCCC decides) by claiming the NCCC decides but the decision is ratified by the Cabinet.

Given the fact that the Presidency has provided three different versions of the role of the NCCC, 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.

Why does it matter whether the NCCC makes 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 State of Disaster and to the regulations promulgated in terms of the declaration. However, legally, 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 NCCC is merely a coordinating 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 NCCC takes decisions about the lockdown on its own, takes decisions which are then dictated to 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 NCCC 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 NCCC. 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 NCCC 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 NCCC, because neither the minister nor the Cabinet are permitted to act under dictation from the NCCC 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 NCCC who then instructed her to implement them.

For all these reasons it is perhaps not surprising that Dr Cassius 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 NCCC, that their insistence on asking questions about the legality of the NCCC was jeopardising “all measures taken to save South African lives and ensure security of public health”. This could only be true if Lubisi believes there is a real possibility that the entire lockdown was invalid because of the unlawful role played in this by the NCCC. DM