It is a matter of concern that Dr Lubisi, who speaks for the Presidency and possibly also for the Cabinet, appears to have sought to close down the debate about the executive’s adherence to the rule of law, writes Craig Watt-Pringle.
On 27 April 2020, RHK Attorneys addressed a letter to the President of the Republic of South Africa.
RHK Attorneys did so on the instructions of their clients, advocates Nazeer Cassim SC and Erin Richards, who are acting in their personal capacities as concerned citizens.
Both advocates are members of the Johannesburg Society of Advocates, a constituent bar of the General Council of the Bar (GCB).
In their attorneys’ formal letter to the President, they expressed concern at the possibility that the National Coronavirus Command Council (NCCC) had been taking far-reaching decisions regarding the measures taken to contain and combat the Covid-19 pandemic, without necessarily being constitutionally mandated to do so.
These decisions include (but are not limited to) the decision to impose the initial three-week lockdown, the decision to extend that lockdown for a further two weeks, and the decision to establish and implement the level 4 lockdown currently in place.
The stated purpose of the letter was to elicit pertinent information from the Presidency, from which they would be able to form a view as to whether decisions publicly attributed to the NCCC were in fact taken by the NCCC and if so, whether this implied that executive authority was being wielded by a body for which, they contend, there is neither a constitutional nor a statutory basis.
If so, the South African public could have been subjected to far reaching, yet unlawful restrictions via the so-called lockdown regulations.
I do not propose to express any views on the merits of the issues raised by Cassim SC and Richards.
I am however deeply concerned by a personal attack on my colleagues by Dr Cassius Lubisi, Director General and Secretary of the Cabinet, who responded to their attorney’s letter on behalf of the Presidency.
In his letter dated 4 May 2020 and addressed to RHK Attorneys, Dr Lubisi provided a response to the queries of Cassim SC and Richards. That response ends thus:
“We trust that the above addresses your concerns. Should it not, we invite your clients to constructively propose alternatives rather than threaten us with litigation. Their insistence on putting in jeopardy all measures taken to save South African lives and ensure security of public health is not commensurate in our respectful view with their positions as officers of the court.”
It is unclear how a request for information on the legality of the measures taken to combat the pandemic can put these measures in jeopardy, particularly if, as Dr Lubisi stated in his letter, all the decisions referred to by Cassim SC and Richards are legally and constitutionally compliant.
However, of particular concern is the personal attack on Cassim SC, and Richards suggesting that the letter sent on the instructions of two practicing advocates is conduct not commensurate with their status as officers of the court, which implies unprofessional of improper conduct on their part.
Advocates’ duties as officers of the court are in the main to advance their client’s causes in judicial proceedings without fear or hindrance, subject to certain overriding duties to the court.
Those duties include the obligation not to mislead the court, or knowingly be a party to any deception by their clients, to uphold the dignity of their profession and of the court and to draw to the attention of the court legal authorities pertinent to the court’s decision, even when such legal authorities are not in their client’s favour.
It follows that when Cassim SC and Richards expressed concern about what they perceive to be possible illegality in relation to the role of the NCCC, they were discharging their civic duties and exercising rights which every person has in our constitutional democracy.
Their professional status as advocates is irrelevant and the slur on their behaviour “as officers of the court”, are both unwarranted and regrettable.
Dr Lubisi’s letter immediately entered the public domain and his closing remarks quoted above have been widely reported in the media, on social media and on numerous websites.
Dr Lubisi was requested in a letter addressed to him by Cassim SC on 6 May 2020, to retract these remarks, but has not done so.
It is a matter of concern that Dr Lubisi, who speaks for the Presidency and possibly also for the Cabinet, appears to have sought to close down the debate about the executive’s adherence to the rule of law by casting aspersions on the propriety of the conduct of Cassim SC and Richards, by invoking their status as advocates when in fact they are expressly acting as private citizens and their conduct does not amount to improper conduct by virtue of their professional status as advocates and officers of the court.
– Craig Watt-Pringle SC is chairperson of the General Council of the Bar of South Africa (GCB). He is writing in his personal capacity.