Corona Virus: SA Government lam-basted for action on cooked food sales, threatened with legal action about its ‘illegal’ ban on Take-Away hot foods prepared in supermarkets!

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The South African Government is facing legal action regarding the State of Disaster regulations on a number of fronts, including the ‘race-related’ allocation of funds to tourism businesses from the Tourism Relief Fund, a case brought by AfriForum, and to be heard this coming week.  Now the unknown Sakeliga is threatening court action if the Government does not withdraw its new ruling that hot and prepared foods sold on a Take-Away basis by supermarkets, announced last week as Phase 1 of the Lockdown period expired. Woolworths and the DA opposition party are making their voices heard in the matter too. Prohibiting cooked and frozen foods has provoked the strongest reaction by the public to any of the Corona Virus Lockdown regulations, stronger than the ban on the sale of cigarettes and alcoholic beverages, and the walking of dogs. 

Prior to the actual Lockdown but after it was announced, and the regulations presented to the nation by President Cyril Ramaphosa, it was already announced that no prepared meals were allowed to be sold and delivered by restaurants, dashing their hopes of continuing to run their businesses and employ their staff during the Lockdown period.

Corona Virus: No Take-away Restaurant meals may be delivered during Corona Virus Lockdown!

In the first three-week phase of the Corona Lockdown supermarkets continued selling roast chickens, pies and other prepared foods from their Take-Away sections, the staple food of many staff working away from home, and of single persons not wishing to cook for themselves. The new advisory forbids this, but does not refer to the transportation of prepared bulk fresh or frozen meals prepared by charity organisations feeding the homeless during this dire time, technically forbidding this amazing community service too. .

A legal opinion prepared for client Woolworths by legal firm Webber Wentzel on the closing down of the retailer’s prepared foods divisions spells out the ‘unlawful’ prohibition by the retailer to bake bakery products, offer rotisserie chicken products, pies, as well as frozen prepared meals. It is argued that selling frozen and cooked meals assists in preventing the retail outlets being full of shoppers, assisting in keeping its customers at home. The Lockdown regulations referred to ‘any food products, including non-alcoholic beverages’ being allowed to be sold by food stores, thus not restricting retailers as to the type of food products sold. The conclusion is that ’enforcement authorities are acting  unlawfully in seeking to stop the sale of cooked food and confiscating food from the counters. They potentially face a significant civil claim’. 

 

Sakeliga is ‘an independent, not-for-profit community organisation for business persons in general, but for small and medium-sized enterprises in particular. Sakeliga has an independent board, comprised of senior business persons from various sectors of the economy’, according to its website. The organisation is threatening Minister of Trade, Industry and Competition Ebrahim Patel with Court action unless he undertakes to reverse his Department’s ‘unlawful, irrational, and harmful obstructions to food production’  by tomorrowits website states. It writes further that there is ‘no lawful restriction on the production of ‘warm’, ‘cooked’, or ‘prepared food’. In addition it states that the CIPC (Company and Intellectual Property Commission) has no authority to decide which products or services are essential or not. The business association believes that the ‘principles of constitutionality and legality must be followed’. It points out that almost every product in a supermarket has been cooked, prepared, or previously warmed. The organisation states that while it was specifically prohibited that restaurants prepare food, there is no regulation which disallows the sale of prepared or pre-cooked meals, or restaurants transforming themselves into essential food providers.

The full article follows below:

The business group Business League is going to take the Minister of Trade, Industry and Competition to court if he does not stop and correct his department’s unlawful, irrational and harmful obstruction of food production.

Business League on Friday gave Minister Ebrahim Patel until Monday, 9am to undertake an undertaking to withdraw his statements on the production and sale of “prepared”, “hot” and “cooked” food.

“We have been advised that there is no legitimate restriction on the production of ‘hot’, ‘cooked’ or ‘prepared’ food as the minister and his department insist. We have also been advised by senior legal counsel that there is no legitimate basis for the CIPC to certify whether products and services are ‘essential’ or not. Officials continue to issue these arbitrary directives in media conferences and tweets, but no such regulation has been promulgated, ”says Piet le Roux, CEO of Business League.

“The Department of Trade and Industry’s efforts to act judiciously by mere proclamation, regardless of the merits of its instructions, are a danger to the rule of law. Even in the face of our unusual circumstances, the principles of constitutionality and legality must be respected. ”

“Not only were these regulations never promulgated,” says Le Roux, “but the mere idea that the sale of hot, cooked or prepared food should be stopped is irrational and harmful to public health: every item on store shelves is somewhere in heated, cooked or prepared its production chain in some way. Everything from pastas to tinned foods to bread to vegetables to cold meats to dairy products – and so you can go on – have been processed. It is impossible to define what the minister and his officials have declared “illegal” – and there is simply no way to obey it. It only serves to intimidate informal traders, as well as small to medium-sized businesses. It lowers food supplies – and so does prices. ”

Although restaurant operations are prohibited, there is no regulation prohibiting the sale of cooked or pre-prepared food. Furthermore, there is no regulation that restricts restaurants from converting themselves into essential service providers, such as delis, bakeries, supermarkets and other food service providers that sell and deliver but are not open to catering.

Danger to the legal order 
The present situation – where ministers, government officials and public functionaries issue assignments without due process and beyond the limits of the law – is unacceptable. It is contrary to the rule of law and is an abuse of power. Rather, it jeopardizes public health.

The arbitrary instructions, in a time of social uncertainty, also jeopardize the safety of law-abiding members of the public. Businessmen and consumers who act in good faith must now defend themselves against law enforcement officers who try to carry out ultra vires public instructions by ministers, as if such instructions are legal, understandable and enforceable.

Legal assistance to NGOs and businesses 
Given how many businesses and NGOs are unnecessarily hampered, Sakeliga will expand its offer to subsidize customized legal opinions for essential services. The purpose of such legal opinion is to provide businesses with legal certainty, as well as to provide law enforcement officers in good faith where they seek to act on unclear, or even illegal, instructions.

The expanded legal aid offer now means that Sakeliga will now pay 100% of the fee for a customized legal opinion for the first 50 non-governmental organizations applying. All businesses that can make a bona fide and prima facie case for a “necessary” service provider or to carry out “essential” care and maintenance already qualify for a 50% subsidy from Business League for their legal opinion.

Business and NGOs can apply at  www.sakeliga.co.za/covid19

The role of civil society and businesses 
Le Roux says it is imperative, at times like this, that civil society take the lead in solving its own problems: “It is neither possible nor desirable for governments to be ubiquitous and in control. Social crises are brought about by community institutions. They must also be able to provide ‘essential’ services free from the impediment of conflicting legislation and unlawful conduct. “

“Waarom word net die regering toegelaat om kos te versprei, en nie-wins organisasies nie? Hoe is dit nou onwettig om sopkombuise te bedryf – selfs al word daardie sop met alle redelike gesondheidsmaatreëls voorsien? Waarom is daardie dinge wat burgers kan doen om mekaar te help nou, klaarblyklik, onwettig, behalwe wanneer hulle eers toestemming by burokrate kry? Dié toedrag van sake is nie bevorderlik vir ‘n samelewing met onderlinge vertroue en samewerking nie – dit is sentrale beplanning, die skyn van kennis en die aftakeling van gemeenskappe.”

Withholding legal action 
Given the exceptional circumstances in the midst of the Covid-19 situation, Sakeliga has so far refrained from taking legal action, even in the face of alarming illegality and irrational conduct by civil servants and other officials. Business leagues, instead, have provided input into public participation processes and have written various letters to ministers and other officials over the past three weeks.

However, given the Minister’s failure to even acknowledge receipt of our letters – and considering the tremendous damage now being done to businesses and consumers without any health benefit – it is appropriate to take further steps.

Excerpt from Sakeliga’s letter to Minister 
Sakeliga’s letter of 17 April to the Minister of Trade, Industry and Competition includes the following demands:

  • That your department immediately cease any efforts to prevent, prohibit or otherwise impede the sale, supply, production and / or delivery of hot, prepared meals. 
  • That your department refrain from making any statements regarding the enforcement of the containment regulations that are not, in themselves, in accordance with promulgated regulations and / or other directives. 
  • That your department immediately instructs law enforcement officers to stop obstruction, interference, closure or other interruption and arrest where any business or business owner has previously conducted business as a restaurant, but has now – in accordance with the regulations – switched to a business that now manufacture and / or supply other food products.’ 

The letter sent to Minister Patel on behalf of the SakeIiga follows:

17 April 2020
THE MINISTER OF TRADE AND INDUSTRY
By e-mail: KMotlhabi@economic.gov.za ministry@economic.gov.za
sntanzi@thedti.gov.za VSkosana@thedti.gov.za
THE DEPARTMENT OF TRADE, INDUSTRY AND COMPETITION PRETORIA
By e-mail: contactus@thedti.gov.za Minister/Sir/Madam,
COVID-19 EMERGENCY LOCKDOWN REGULATIONS (AS AMMENDED) ESSENTIAL SERVICES AND GOODS: FOOD AND RESTAURANTS
Our ref: PJ Wassenaar/es/QB0665 Your ref:
1. We refer to our previous letters to your offices and specifically the extended lockdown regulations published on 16 April 2020. In our correspondence, we inter alia requested your urgent corrections of confusing public statements and ultra vires directives by the Minister and other officials regarding restaurants and food preparation.
2. You have so far failed to respond to these letters, while the Minister and related officials continue to make in our client’s opinion public statements that are not in line with promulgated regulations.
3. Our client, Sakeliga NPC, has now instructed us to direct this letter in order to escalate its interventions.
4. Note that in this letter we address only certain specific matters pertaining to the extension of the lockdown regulations. Our client nevertheless points out that the Government is yet to present a sensible relaxation of the lockdown regulations. Our client is of the view that Government should jettison its “essential versus non-essential” approach to business. The current approach has led to more than 50 different regulations and directives being issued over the last 21 days. It is no longer possible for reasonable people to comprehend the scope thereof and stay abreast of what is effectively becoming a new and arbitrary regulatory framework for business and day to day life. Our client re- extends its offer and request to discuss alternatives to the current measures employed.
5. Regarding the food industry, our client is of the view that the Department should reconsider its purported position on the sale of “warm” and/or “cooked” and/or “prepared” food. We would also like to deal with the contribution that the restaurant industry can and is already making to the maintenance of food supply.
WARM AND/OR COOKED AND/OR PREPARED FOOD
6. Our client has noted various public statements made by your Department, the CIPC, as well as the Minister of Cooperative Governance and Traditional Affairs on 16 April 2020 regarding the sale of “warm” and/or “cooked” and/or “prepared” food by supermarkets and other food retailers who conduct business as essential service providers.
7. Our client has considered the wording of the current regulations. It is our client’s view that the lockdown regulations as amended yesterday do not prohibit the sale of “warm” and/or “cooked” and/or “prepared” food. The regulations do not prescribe the way food has to be prepared, packed, stored or sold to the public.
8. Our client is also of the view that any ban on the sale of “warm” and/or “cooked” and/or “prepared” food would be illogical, irrational, and impractical. The fact is that, by the time of its sale, all food items have undergone some combination of “warming”, “cooking” or “preparing”. This includes inter alia pastas, rice, porridge, bread, meat, frozen pizza, milk, yoghurt, chocolate, dried fruit, microwaveable foods, and so forth and so forth.
9. The regulations as promulgated simply do not set any standards regarding the quality, manner of production, manner of sale or level of preparation which is to be applied to food during the lockdown. Any attempt by Government to overregulate an industry as vast as the food production industry, will in our client’s view not only be unenforceable due to the difficulties which Government will face in giving a proper definition to the regulations, but will also be irrational and lead to food shortages across the country.
10. Many communities are already suffering as a result of shortages in the supply of even basic food. It is our client’s view that these shortages are inter alia as a result of the uncertainty and chaos that has been inflicted on the food production and supply industry as a result of the conflicting views held by your Department, the Department of Cooperative Governance and Traditional Affairs and the Minister of Police. The fear of criminal prosecution has led a massive chilling effect on even bona fide food producers and the essential service providers that support them. By continuing to interference with the production and supply of food, Government will in our client’s view only cause further and possibly even more severe food shortages.
11. Our client has now instructed us to seek the further advice of senior counsel regarding a review of the current regulations, alternatively an interdict, if Government and specifically your Department continues to make statements to the public which discourages the production and sale of warm and/or cooked and/or prepared food.
SUPPLY OF WARM AND/OR COOKED AND/OR PREPARED FOOD
12. Our client has received complaints from members across the country who have suffered as a result of an inconsistent and arbitrary enforcement of the regulations, often resulting in the closure of food production facilities. Our client has also received reports of law enforcement arresting and/or attempting to arrest bona fide businesspeople who try and render essential services in good faith based 
on their interpretation of the regulations. Instead of instructing such businesspersons to return to their residences, they are summarily arrested.
13. Our client fears that law enforcement will as a result of the uncertainties caused by your media statements refuse to properly consider the alternatives available to them to produce “essential” goods and services, such as temporarily adapting their business models in order to comply with the regulations but also remain competitive. Many innovative and law-abiding restaurant owners have in compliance with the regulations terminated their restaurant service to the public for the duration of the lockdown and converted their kitchens to food production and supply facilities. A simple interpretation of the regulations in our client’s view clearly confirms that the production, supply, sale and delivery of food is an essential service.
14. If your Department continues to give the impression to the public and law enforcement that they are entitled to clamp down on bona fide food production business activities and/or even arrest business owners who act under a bona fide and proper interpretation of the regulations, our client will on an urgent basis approach the courts for relief.
15. Our client will seek further urgent relief in the event of Government or law enforcement obstructing law-abiding restaurant owners who have, in compliance with the regulations, reinvented their business models in order to adapt and comply with the regulations of the Minister of Cooperative Governance and Traditional Affairs.
16. Our client accordingly demands:
a. That your ministry immediately seizes any attempts to prevent, prohibit or otherwise interfere with the production, sale, delivery and/or supply of warm prepared food to the public.
b. That your ministry desists from making statements regarding the enforcement of the lockdown regulations which do not comply with the promulgated regulations and/or directives.
c. That your ministry immediately instruct law enforcement to refrain from harassing, interfering, closing or otherwise arresting any businesses or business owners who have previously conducted business as restaurants but who have properly under the regulations converted their business activities in order to comply with the current regulations regarding the supply and/or sale of warm/or prepared food.
17. We request your undertaking regarding the aforementioned by no later than 09h00 on 20 April 2020.
Yours faithfully,

 

The DA Shadow Minister of Trade and Industry Dean Macpherson has also written to Minister Patel:

Yesterday, I wrote to Trade, Industry and Competition Minister, Ebrahim Patel asking him to furnish me the legal advice he relied on to pronounce that cooked food is not allowed ‘as the law stands’.
In the amended lockdown regulations, there is nothing that prohibits the production or sale of cooked food and thus the Democratic Alliance (DA) believes that the Minister has overstepped his powers by simply pronouncing that retailers may not sell cooked or prepared food.
This absurd determination by Minister Patel is illogical and ill-considered. It follows a pattern of late by certain Ministers which seek to de-legitimise the lockdown by advancing regulations that make no sense and are not found in law.
The latest pronouncement by Government will have detrimental consequences for frontline health care workers, members of the security services, essential service workers and transport workers like truck drivers who rely on cooked food due to the work they are doing.
This will also be particularly devastating for the elderly who may be unable to cook food due to their frailty.
Therefore, the DA has given Minister Patel until 17:00 today to explain in writing what his rationale was to summarily pronounce on the regulations to ban the sale of cooked or prepared food.
At the same time, we are also consulting with our legal team to obtain a legal opinion on the legality of Minister Patel’s actions.
We can not allow Ministers to arbitrarily undermine the lockdown by acting outside of the mandate which is what we are now currently seeing.
Media Enquiries
Dean Macpherson MP
DA Shadow Minister of Trade and Industry 083 776 0202  One Nation with One Future built on Freedom, Fairness, Opportunity and Diversity for All. 

M&C Saatchi Abel Group Advertising agency’s Mike Abel wrote a strongly-worded opinion piece about prohibiting cooked and frozen foods:

We signed up for the President to be our conductor and all of us to be the orchestra – not for Government to be the border collie and us to be their sheep…

When our early lockdown was announced, I was in full support of it. I remain so.

When the extension was announced, I was skeptical of the profound economic impact, but still largely supportive of the decision, as the science and data were informing us more every day, on this unknown predator #Covid_19 – and there was indeed no point wasting the brutal 3 weeks of initial lockdown if the following 2 weeks would further entrench our early-mover-advantage against this unseen enemy.

I have always been an outspoken advocate of that which makes sense, and in equal or greater measure, an adversary against nonsense. We are seeing a lot of the latter now emerging and I wish to challenge it.

So, not to be misinterpreted by anyone, I am wholly supportive of this 5 week lockdown if it gives our health services the ability to better confront the inevitable deluge that’s coming our way in infections and hospitalization.

It’s an enormous sacrifice all South Africans have made to protect a very small percentage of our population who are most at risk – but entirely right, necessary and humane.

But, after these 5 weeks we need to get going. With vigor.

And before these 5 weeks end, some decisions by Government need to be urgently relooked and adjusted…

We all have our canaries in the mine. The thing that triggers us into realizing all is not as it should be. My canary, in this instance, is a hot Woolies chicken pie that has now been placed firmly on the Government’s dangerous goods list. I thought it was just a pie…

There is a fine line between asking a democratic population to join you in a Herculean effort to stop an ill-understood pandemic, to becoming an iron-fisted nanny or even authoritarian State. And we need to ensure our Government stays on the right side of that line – as happens in any democracy.

We have not lost our voice nor our rights people. This can only happen with our permission.

Now, I well understand the need to close the in-dining aspect of restaurants, as it is lockdown after all, but I have never understood the need to stop takeaways if social distancing occurs or if the food can be brought out to a car.

Similarly, it is ridiculous for home delivery of restaurant food to be closed as the very nature of it, reduces people shopping, helps the elderly and immuno-compromised in getting food and keeps part of the economy and employment going as a result.

Whatever the number of people working is, in keeping this food offering going, it is significantly smaller than the number of people it will help to stay at home and get their food. It’s a proven way of “thinning the herd” and that is why governments around the world, China included, have actually asked food delivery businesses to step up their efforts.

Similarly, to stop people buying hot food at their supermarket, when they are already out shopping is idiotic. Why on earth is picking up a pie, a roast chicken or ready-made bolognaise going to increase your chances of getting the virus? This is authoritarian behaviour as it is fundamentally illogical and exceeds the mandate in my view, of a State intervention.

I fully support the hugely inconvenient banning of alcohol sales over this time, as although I really enjoy a daily beer or glass of wine, the harsh reality of alcohol is it reduces ones inhibitions, which in a poorer South African context particularly, can lead to domestic violence. It’s a proven fact.

We cannot have people, in confined spaces, who are struggling to survive, being drunk.

The world over, domestic abuse has tragically risen over this period. It was sadly inevitable given people with a pre-existing tendency towards violence, now being locked down with others. They cannot be drinking on top of this.

I have no tolerance for any of these decisions being made by Ministers where it fits their religious beliefs, prejudices or predilections. Only if it makes sound, logical sense.

None of us should lose this filter and none of us should give up our free rights as enshrined in our Constitution.

Another crazy example. E-commerce has a huge role to play in giving people the opportunity to stay home and get stuff delivered to them. I cannot fathom why the Government has drawn up their essential goods list because what may be essential to one family, may be entirely irrelevant to another.

For a painter not to be able to buy their paints, brushes and canvases over this period is ridiculous. It supports their living. I know one who currently can’t do precisely that which keeps the wolf from the door. For someone not to be able to buy a microwave when their one breaks over lockdown is non-sensical. There is simply no logic in it – and the list goes on.

So, I continue to support our President and our Health Minister in their valiant efforts to prepare the health system for the Covid onslaught. That is all that lockdown has done.

It has slowed down spread, simply to buy time. It has not killed the virus. It has not abated. We don’t have herd immunity yet. It has only bought time to get our ducks in a row in dealing with it.

And when this lockdown ends in 2 weeks, which it must, in order to get the economy going and people earning a living again, we will still have to ensure degrees of social distancing, obsessive hand washing, mask wearing etc until such time as irrefutable data tells us it’s subsided or we have a proven treatment or vaccine.

It’s the elderly and immuno-compromised, and those who interact with them, who will need to remain vigilant.

For everyone else we will need to put our economy and efforts into overdrive. We went into Covid with the SA economy on its knees, we were downgraded to junk status early into lockdown. It will now take a massive Public : Private partnership to help us emerge from this crisis. For State to partner business and individuals in rebuilding our economy and helping those most in need.

Government must not confuse this with being given any additional rights nor privileges than they had prior to Covid.

Work with us and we’ll do incredible things together – even make miracles happen. But do not confuse this crisis with an ability to dictate to us. We are a democracy and our rights are constitutionally enshrined – and we will hold you fully accountable to that 🇿🇦‘

 

Some chefs, restaurants and food suppliers have seen a gap in the regulations in the delivery or client collection of prepared meals or ingredient packs.

Corona Virus Lockdown: Food Offering and Delivery very tightly controlled, yet some chefs and restaurants have found ways to do it!

 

POSTSCRIPT 20 April : On EWN News this morning the Department of Trade & Industry has requested a two-day extension to the response demanded by Sakeliga by today.

POSTSCRIPT 20 April:  This morning Minister of Corporative Governance and Traditional Affairs Nkosazana Dlamini-Zuma announced that no ‘cooked hot food’ may be sold in stores. It does appear to provide a gap for retailers to continue to sell frozen meals and foods.

POSTSCRIPT 20 April: EWN reported on Kfm that Woolworths has decided to not challenge the hot food regulation in court.

POSTSCRIPT 21/4: News24 reports that in a virtual Government committee meeting today Minister Nkosazana Dlamini-Zuma explained that ‘government banned hot food, because if it is sold they can ‘kiss the Lockdown goodbye’ as people will leave their home to buy fast food’! 

 

Chris von Ulmenstein, WhaleTales Blog: www.chrisvonulmenstein.com/blog Tel +27 082 55 11 323 Twitter:@Ulmenstein Facebook: Chris von Ulmenstein Instagram: @Chrissy_Ulmenstein

 

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