Being constantly bombarded and overloaded with information, it should come as no surprise that human beings tend to find it difficult to keep up with the stories unfolding around them, critically analyse them, and connect the dots over time. To illustrate my point let me use an example that caught my attention a number of years ago.

On 30 May 2008, Judges of the Constitutional Court (the highest Court in South Africa) issued a media statement accusing a Judge President (the Head of one of 9 High Courts and 8 local divisions in South Africa) of violating the Constitution. The allegation was that the Judge President had attempted to influence the outcome of a case in which a judgment was then pending in the Constitutional Court, thereby undermining judicial independence and impartiality.

On that occasion, not only the entire organised profession of advocates (as then represented by the General Council of the Bar) but also a retired Judge of the Constitutional Court, a non-profit organisation and the entire mainstream media led the charge in the condemnation of the Judge President – based on an allegation that, more than 12 years later, is yet to be proved.

Fast forward some 12 years to 4 May 2020. The President of the Republic of South Africa condemns advocates – one of whom is a Senior Counsel of many years’ standing – for what he says is their “insistence on putting in jeopardy all measures taken to save South African lives”. He says, through the pen of the cabinet secretary writing on the letterhead of The Presidency, the advocates’ conduct “is not commensurate … with their positions as officers of the court”.

Those of us who are members of the organised advocates profession – which is generally conservative in its culture – know the seriousness of an accusation that a practising advocate’s conduct is not commensurate with his/her position as an officer of the court. Such allegation is never made lightly by members of the profession because we know that once that well of integrity has been poisoned (even if unfounded) the damage is hard to repair. That is why the President’s remark can only be seen as a naked threat.

This could have been avoided as I shall endeavour to show. It is also difficult to blame anyone who interprets it as a suppression of opinion that the President does not like. Section 16 of the Constitution [freedom of expression] is implicated. So, too, the human dignity provision in s 10 of the Constitution. The threat, whether intentional or not, also jars against the foundational constitutional values of “human dignity” [s 1(a)] and the “supremacy of the Constitution and the rule of law” [s 1(c) & s 2].

But equally troubling is the supine attitude adopted by the legal profession in the face of this unwarranted attack. Not one association of advocates, not one retired Judge, not one non-profit organisation, not one mainstream media house has condemned this naked threat by The Presidency of advocates for raising issues of constitutional import with the President for clarification and requesting information.

So, what had the advocates done to trigger such a dressing down and naked threat by the highest political office?

The Cause

On 27 April 2020 – Freedom Day in South Africa, as it happens, loosely the equivalent of Independence Day in the United States of America – a firm of attorneys acting for two advocates who are members of the Johannesburg Society of Advocates, sought clarification from the President on the provenance of a structure known as the National Command Council (the NCC). They sought the clarification and request for information from the President “in [his] capacity as the Honourable President of the Republic, and in [his] capacity as the chairperson of the National Coronavirus Command Council”.

The inquiry, said the two advocates, was necessitated by lack of information on the provenance of the NCC, its role, and the confusion that abounds following conflicting information put out by Ministers in the President’s cabinet about the NCC and its powers. For example, the advocates said, Ministers have described the NCC variously as:

  • the centre of information sharing
  • co-ordinating and implementing measures to contain the virus
  • leading the country’s response to the pandemic

The advocates reminded the President that

  • in his televised public address dated 24 March 2020 the President told South Africa that the NCC was the body that had made the determination to enforce a 21 day national lockdown;
  • on 3 April 2020 the Minister of Police told South Africa that the NCC had “revised” the regulations;
  • in his public address of 9 April 2020 the President told South Africa that the NCC was the body that determined that the national lockdown should be extended;
  • under the extended lockdown plan announced by the President on 23 April 2020, the NCC has the power to determine coronavirus alert levels, and it had already made a determination that the current alert level be positioned at level 4.

The advocates concluded these reminders to the President by saying:

“We assume that these statements are an accurate reflection of the position but remain open to correction.”

The advocates advanced legal argument on what they believe (in the absence of clear official information on the provenance of the NCC) to be the NCC’s overreach in performing “statutory regulation-making powers” and “executive powers”.  

Why did the advocates seek clarification and request for information in their letter? They addressed this in their letter as follows:

“[O]ur attempts to locate any official documentation establishing the NCC or providing for a lawful delegation of functions [to it] have yielded no results. It appears that such documentation does not exist, alternatively, if it does exist, it has not been made publicly available.”

The advocates then “respectfully request clarification” on two specific issues:

  • The legislative or other basis for the establishment of the NCC;
  • The extent of the powers being exercised by the NCC.

In conclusion they wrote:

“The decision to address this correspondence to you was not taken lightly, and it is now addressed to you in the spirit of cooperation and democratic vigilance. We emphasise that it is not our intention to undermine the Government’s response to the COVID-19 pandemic. We are mindful of the highly pressurised and time sensitive environment in which you are operating, and the extraordinary balancing acts that are being required of you at this time.

However, our understanding of the burden you shoulder does not detract from the requirement that all exercises of power must be lawful, nor does it in any way mitigate our concerns. The purpose of our letter is accordingly to procure sufficient certainty about the NCC to reassure ourselves that democratic checks and balances remain in place, and that the regulations which continue to severely circumscribe the rights of all South Africans subsist within the boundaries of our Constitution…

We are hopeful that the questions raised in this letter can be resolved in a cooperative manner.”

Then the advocates’ attorneys requested the President to provide answers to the two questions posed to him, namely, (1) the legislative or other basis for the establishment of the NCC, and (2) the extent of the powers being exercised by the NCC.

The attorneys told the President that if this was not done by 13h00 on 4 May 2020, or at such extended deadline as the President may require, the two advocates “may consider approaching their ethical bodies for directives concerning potential litigation”.

The Trouble

The President answered neither of the two questions “respectfully requested” of him for clarification in his capacity both as President of the Republic of South Africa and as chairperson of the NCC. Instead, speaking through the cabinet secretary, the President dressed down the advocates, lecturing them on “trite principles of our Constitutional democracy”, excoriating them for “insistence on putting in jeopardy all measures taken to save South African lives” and threatening them saying their inquiry “is not commensurate … with their positions as officers of the court”.

The President’s letter:

  • conflates the function of the NCC with that of bodies like cabinet’s Inter-Ministerial Committees (the IMC) and clusters of Ministers
  • deals with a separation of powers question (between the executive and the legislature) that was never raised;
  • talks of his power to assign the administration of legislation to members of cabinet, an issue never raised;
  • talks of the accountability of cabinet ministers to Parliament, a matter that is not in issue;
  • harks back to the position that the NCC is “a coordinating body”, like the IMC and a cluster of Ministers, a statement of fact that seems inconsistent with the President’s statements in his addresses (according to the two advocates) dated 24 March 2020, 9 April 2020 and 23 April 2020;
  • defends Minister Dlamini-Zuma against a claim of “interference” that is nowhere in the advocates’ letter. The advocates said, on the information available to them, the NCC seems to interfere with “statutory regulation-making powers” and “executive powers” and asked the President to clarify this; and
  • accuses the advocates of threatening litigation, an accusation that does not sit comfortably with the general tenor of the advocates’ request for information, clarification, spirit of cooperation, and their indication that they “may consider approaching their ethical bodies for directives concerning potential litigation”. In practice – of which neither the President nor the cabinet secretary may be aware – this last approach means the advocates would seek guidance from the Professional Committee of their Bar Council which may possibly advise against litigation.

The Concern

Having read both the letter of the two advocates requesting information and clarification from the President about the provenance of the NCC that the President chairs and the extent of its powers, on the one hand, and the President’s “sharp” response to their letter, on the other, one wonders whether lawyers who dare seek clarity from the President about matters of constitutional importance are safe to raise these questions not only in their personal capacities as citizens [s 3(2)] but also as legal practitioners [s 22] representing those who do.

The Constitutional Court has described the President in Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly [2016] ZACC 11, 2016 (3) SA 580 (CC), 2016 (5) BCLR 618 (CC) at para 20 as

“a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.”

Given the regrettably cantankerous response from the office of such a “constitutional being” to a civil request for information to which the requester is entitled as a citizen and a voter, what hope is there for an independent legal profession and respect for the Rule of Law in South Africa going forward?