You are currently viewing our desktop site, do you want to visit our Mobile web app instead?
Join our mailing list to receive top business news every weekday morning.

3 hot potatoes for government as legal battles begin

Cooked food ban ‘unlawful’, tourism enterprise assistance ‘discriminatory’ and cigarette sales seemingly not actually prohibited.
Playing chicken? The state may find that trying to come between its citizens and a hot meal could backfire. Image: Diane Bondareff, Bloomberg News

On Monday the Fair-trade Independent Tobacco Association (Fita) issued government with notice that it may bring an urgent application before the high court, to clarify whether cigarette sales are banned in terms of lockdown regulations.

The ban could cost thousands of jobs and more than R1.2 billion in excise revenue to the fiscus, and Fita wants government to explain where it gets its power to shut down the industry.

Trade union Solidarity and civil rights organisation AfriForum have already issued summons on the Department of Tourism and its minister, over race preferences in the distribution of financial relief to small businesses hit by the Covid-19 lockdown.

Read: Small-town tourism knocked

The AfriForum case is due to be heard on an urgent basis in court on Tuesday (April 21). Solidarity’s case will be heard next week.

‘Disgraceful’

AfriForum CEO Kallie Kriel says it is disgraceful that government has decided to misuse assistance for struggling enterprises to promote a race-based agenda at a time when everyone in the country needs to stand together. He says the Department of Tourism’s racial requirements amount to unfair discrimination and are therefore unconstitutional.

“The expressed aim of the department’s fund is to offer assistance to tourism enterprises that are being adversely affected by Covid-19. Seeing as everyone, notwithstanding their race, is being adversely affected by Covid-19, the department cannot use Section 9(2) of the Constitution, which justifies correction of discrimination from the past, as justification for discriminating assistance against the consequences of Covid-19.”

AfriForum has urged all tourism businesses affected by Covid-19 to apply for relief from government, and if rejected on the basis of BEE requirements, to notify the organisation so that it can mount a legal attack.

Snooker move on cooked food

Over the weekend, the Democratic Alliance (DA) wrote to Trade, Industry and Competition Minister Ebrahim Patel, asking him what legal advice he was relying on to shut down the supply of cooked food.

The DA had been set to approach the North Gauteng High Court to lodge urgent papers to have Patel’s comments in this regard declared unlawful and to seek a personal costs order against him, according to DA Shadow Minister of Trade Dean Macpherson.

But the weekend saw Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma amend the lockdown rules to specifically ban the sale of cooked food.

“This was clearly unlawful,” says Macpherson, adding that Patel had to rely on his cabinet colleague to cure his legal nightmare.

“[This] amendment now makes what was illegal legal, and is short-sighted and mean-spirited, especially 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.”

Macpherson says it is important to ensure that government does not overstep its powers and in the process treat citizens with disrespect.

Business organisation Sakeliga has also threatened to drag Patel to court unless he reverses his pronouncements on the production and sale of “prepared”, “warm” and “cooked” food.

Sakeliga CEO Piet le Roux says the Department of Trade, Industry and Competition’s attempts “to legislate by mere pronouncement are, irrespective of the merits of its instructions, a danger to the rule of law”.

“Even in the face of our unusual circumstances, the principles of constitutionality and legality must be followed.”

Ministers, government officials and public servants are issuing directives without due process and outside the bounds of law, says Le Roux. This is an abuse of power and detracts from public health rather than adding to it.

Sakeliga is offering to subsidise personalised legal opinions for “essential service” providers. The purpose of the legal opinion is to offer businesses legal certainty and provide them with something to present in good faith to law-enforcement officers who might be acting upon unclear or even unlawful instructions.

Adding fuel to the flame

One of the prickliest legal issues is the apparent ban on cigarette sales.

Fita chair Sinen Mnguni says various government officials have issued statements implying that cigarette sales are forbidden during lockdown, but this is not explicitly stated in the emergency regulations. The tobacco organisation representing smaller producers has written to government to ask for clarity on the ban.

“We are constrained to point out that, properly interpreted and despite what state officials have said, the regulations do not prohibit the sale of cigarettes,” says Fita’s letter to the president and other state officials.

It also wants government to explain how a ban on cigarette sales, if it in fact exists, assists in stopping the spread of the Covid-19 virus, and what law empowers government to impose such a ban. It also points out that the sales ban has allowed a black market to flourish, with packets of cigarettes selling for three times their listed price.

Yusuf Abramjee of Tax Justice South Africa (TJSA) says the ban on cigarette sales is costing the fiscus R35 million a day, which means a 35-day lockdown translates into a loss in excise of more than R1.2 billion.

‘Disturbing evidence’

“We have disturbing evidence that rogue cops are conniving with illegal traders, and it is feared that large caches of illicit cigarettes confiscated by police are finding their way back into the market,” says Abramjee.

“President Ramaphosa has rightly earned great respect for his handling of the coronavirus crisis. But this ban is backfiring badly.”

Abramjee adds: “TJSA fully supports a lockdown designed to stop the spread of a virus that could devastate our country. But it’s a painful process and everyone has to buy into it. If the irrational ban on cigarettes is not lifted, we fear that public confidence will be lost and our national sacrifice will be wasted.”

Fita has given the government 24 hours to respond. Depending on the response, Mnguni says an urgent legal challenge may have to be mounted in the high court this week.

Moneyweb is also aware that individual companies deemed ‘non-essential’ as interpreted by public officials, are also planning court challenges to clarify whether they have the right to continue operating.

Get access to Moneyweb's financial intelligence and support quality journalism for only
R63/month or R630/year.
Sign up here, cancel at any time.

AUTHOR PROFILE

COMMENTS   43

You must be signed in to comment.

SIGN IN SIGN UP

Our beloved government have never listened to proper advice. It seems as if they do things and when it hits them that it is the wrong thing to do they defend it. They don’t rectify it. One sometimes wonder if they have proper advisers and lawyers and people like that?

It’s simple They put “party” over country !!!!!!!!!!!!!!

They have their hand picked advisors and the very best lawyers that they have also hand picked. Eg Daniel Mantshe famous for his great service to Denel et al.

Agree

The fault people make is to tell the ANC what to do – they will do the OPPOSITE.

They are scared of following advice, as they could be admitting to having made a mistake.

Pathetic

Heres the thing:

Stats SA predict in excess of a million jobs will be lost.
My prediction is a lot more given the slow pace of the partial upliftment post Lockdown

When BEE companies shed jobs, who is likely to suffer? ie: of the approximate 4200 at SAA, close to 3000 will be BEE appointees

My take is Government must not abolish BEE. It’s created a mindful of entrepreneurs and SMME’s

This pandemic will hit many of those who who undeservedly (not all) gained jobs at the expense of the skill and knowledge

Ironically, as it stands, it’s the SMME’s many in the minority that employ people from the majority, if you get my point!

Yet Government is oblivious to this much like our Northern Neighbors were. Today 90% are unemployed

The chickens have come home to roost!

BEE going nowhere. T.I.A my friend “This is Africa”

Anc always doubles down on bad decisions

Most lawyers will rather go for the fight and earn more than give sound advise and walk away. Ask any person who has been divorced.
The longer the fight, the more money to be made.

Ask anyone who was forced to employ the “services” of a Lawyer in most, if not all situations, they do what they do best, maximise their profits, preferably looking for last minute settlements between parties.

You get the distinct impression that the government is delighting in shutting down businesses, which it seems to think are enemies of the state.

In fact, any freedom experienced by citizens is seen as harmful to the state which should control every minutiae of our lives – and now – thanks to covid-19 – a dream has come true, and there’s almost no limit to stupid and petty rules, as they make sure that people can’t make a living.

Ayn Rand nailed it when she said…The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws

Well said. When Socialists run the show, we are always going to be in for a (painful) surprise.

Now the elderly must die of hunger if they cannot look after themselves anymore? No cooked food may be supplied to them? Who comes up with this? At least they won’t die of the virus while straving to death in solitude, there’s a win. Anybody who is not scared to death by now has no knowledge of what a communist is capable of.

The idea that cooked food may be spreading the Corona Virus can only have been cooked up by our rocket scientists in the cabinet. Nowhere in the world has cooked food been banned. Id1ots!!!!

Still following the strategies devised by Karl Marx and Friedrich Engels.

Criminals are running SA

Guavament is going to find itself E tolled just now.

Buying essential cold popcorn.

They certainly have engineered a tax revolt.

By “banning” Instore” baked bread, pies a.s.o, they, those rulers, are forcing their followers to purchase ingredients such as flour & yeast in aid to produce their own, thereby either using gas, wood, coal & or electricity, thereby helping the likes of Eskom generating revenue & turnover? Years ago, when the concept of Hot Bread Shop originated, the idea was, customers have instant eadable food items, saving time & cost? Now we are forced to go back-wards?

When always having to please the ancestors, you are likely to go backwards because they lived a long time ago in the past.

Okay – so you can’t buy baked bread and have to buy flour. Really?

This is what you get when you vote for the “ruling (today) party. A bunch of on the job trainees.

……..who will never qualify for the job – – – – Not fit for purpose!

It’s not difficult to anticipate what the ANC government will do in response to any chellenge (sic), quandary or given set of options. It will do what you might expect small children to do.

Allowing the sale of tobacco products and the sale of alcohol products in limited quantities should not cause the Corona virus to spread. To the contrary, if smokers and social drinkers have their supplies they may well stay home and find it quite pleasant too.

As for the shutting down of all businesses, many are now at risk of closure due to collapse. Perhaps the cANCer view this as a future opportunity for former established businesses to be taken over at cheap prices by previously disadvantaged citizens at rock bottom prices or for free? This will plunge the economy into territory not previously encountered with many businesses being run by people with no or limited experience or knowledge as is beginning to emerge in the farming industry.

Sweetpea, correction “businesses being run by people with no or limited experience or knowledge as is beginning to emerge in the farming industry.”

not run wrecked looted and plundered. That is their specialty, but this will be on the nano scale compared to what the big boys did to SAA, Eskom etc.

Where other countries will battle a recession we will be forced into a depression by a “Tripartite alliance”.

It is just a clear demonstration with all the Dr’s present that wisdom is not “issued” with the PHD certificate.

It makes it easier to understand the blank expressions as the keep running into the same wall.

FAQ: Why is the sale of cooked or prepared food prohibited? What is the reason?

It feeds WMC and previously advantaged. they banned the hawker cooking food now they need to back this up by interfering in PnP and Woolies.

Because it is simply not an essential service. Just like all the other business activities that must stay on lockdown. Sure, people must eat, but they can buy food and cook at home. Also, if you prepare food in-store, that means more workers commuting, more contact points for the virus to spread through handling of a community’s food. Just my guess.

Whereas a lottery ticket IS an essential item. Like a bar of chocolate a bag of crisps and a cool drink. All absolutely essential items.
Cooked food is clearly a luxury item.

According to the anc jobs are a non essential item too

The soup kitchen is no longer allowed to prepare hot soup for homeless people. Very “cleva” people we have in government.

‘Soup kitchen’ lol. American is that way ->
Such feeding schemes are certainly allowed. Maybe get out of your armchair and have a look outside?

“There is no denying that Hitler and Stalin are alive today…they are waiting for us to forget because this is what makes possible the resurrection of these two monsters.” ~ Simon Wiesenthal

Good letter (or so I thought) elsewhere from a doctor who queries why he couldn’t get a hot meal after his day’s hospital (or wherever) service. The ANC elite professional politician cannot grasp this as they just put out their hands and get; free for them, payment by taxpayer, whatever they choose From KFC to Johnny Blue.

This morning I find myself very depressed at the idiocy of our government in putting more and more draconian rules in place sending so many more people into poverty and starvation than ever before. After watching an interview on BBC World where the WHO special envoy on Covid-19 said that we are going to have to live with the virus as there is no quick cure, I can’t help thinking that the world has destroyed the global economy and so many lives for nothing ! The ANC are revelling in their powers, thinking they can lock us down and at the end of it, the virus will be defeated, but this is not going to happen, especially in SA……..

“Thinking they can lock us down”. They are not thinking that, they are planning that.

Sorry – badly worded. We are locked down already for however long the ANC deem fit, but what I meant is that they seem to think that this will halt the virus and we will come out the other side having defeated it. WHO say this is not going to happen quickly and we will have to learn to live with the virus……

100% South Africa has 52 people dead. It’s like a good day on our national roads.

Globally 125000, a bad flu season versus 80 million new arrivals on earth each year.

And for this we have killed the global economy putting billions at risk.

Before this is all over there will be multiple commissions of enquiry as to how the world lost its marbles on the corona virus.

I’m not saying corona isn’t serious, it is. But wearing masks and social distancing will stop the spread better than any lockdown and they cost almost nothing.

The anc’s story for the lockdown was to buy time to flatten the curve and get prepared for the inevitable.

How many thousand hospital beds have been set up, how many ventilators have they purchased and how many gloves masks and ppe ha e they procured? How many billions did they spend via tenderpreneurs to buy probably zero?

And the virus is still here. The economy is dead and millions of poor are getting angry

The advise is all wrong. They should only allow vegetables. Totally vegetarian. They should make beetroot free. It has always been the favorite of the ANC health department to fix anything. No sugar or dairy or sweets only water. Offenders should be put on bread and water.

Advice. Public schooling?

US spell check.

End of comments.

LATEST CURRENCIES  

USD / ZAR
GBP / ZAR
EUR / ZAR

Podcasts

NEWSLETTERS WEB APP SHOP PORTFOLIO TOOL TRENDING CPD HUB

Follow us:

Search Articles:Advanced Search
Click a Company: