Two high-profile advocates, who threatened to take the government to court over the constitutionality of the National Coronavirus Command Centre (NCCC), have decided to “take a step back” and will no longer pursue with their intended legal action.
In April, advocates Nazeer Cassim SC and Erin-Dianne Richards wrote to the Presidency to request clarity on the powers wielded by the NCCC, which is in charge of the government’s response to the novel coronavirus and regulations implemented during the lockdown.
But, in a letter, dated 15 May, Luqmaan Hassan from RHK Attorneys announced that Cassim and Richards had “elected to extricate themselves from any potential litigation in their personal capacities against the government”.
Hassan wrote that their decision was made in light of growing discourse over the NCCC as well as “our clients’ engagements with the Presidency to date; the birth of numerous legal proceedings on constitutional questions, and guidance from the rules and ethics of their professional bodies and colleagues.”
He added that the two advocates decided to take legal steps and send a follow-up letter after they observed that there was no clear communication from the government about the council.
A second observation they made was “the apparent lack of understanding of the framework of the Disaster Management Act (DMA) 57 of 2002 and the constitutional provisions which underscore it.
He mentioned a third observation: “…what appeared to be limited public appetite by the general citizenry to question the decisions taken by their governments. No doubt this factor was precipitated or significantly exacerbated by the lack of leadership outlined in the preceding paragraph.”
“…. our clients’ concerns about the silence of civil society under the circumstances were grave and their legal backgrounds alerted them, and compelled them to alert the public, to potential democratic malfunctions that may flourish in circumstances where public debate is muted for extended periods,” Hassan added.
Hassan said, as a result, his clients took the “unprecedented step of mobilising as citizens to call for accountability and transparency from our leaders, and to conscientise the public”.
“On the one hand, they sought assurances of an adherence by government to the prescripts of the DMA and the principles of the Constitution, so as to ensure the democratic integrity of government’s response to the disaster.
“…our clients felt duty-bound to raise civil conscientiousness on the matter. Subsequently, and pursuant to the letters having received the attention of the Office of the President and the public, we have witnessed the South African people fearlessly participating in constitutional discourse, and raising pertinent concerns.”
Hassan said due to developments within the public realm, Cassim and Richards decided to take a step back.
“Our clients have accordingly taken the decision that it is no longer necessary and therefore no longer justifiable for them to act personally. They will now step back from their personal involvement in the engagement on the NCCC, and re-immerse themselves in their roles as advocates.
“Our clients are heartened by the public sentiment and debate created which is reflective of a democratic society. They now have every confidence that the public will fight vigorously for accountability and transparency at every turn.
“Our clients thank the Presidency for its engagements to date, which have included both written and oral communication,” Hassan said.