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File picture: Pexels

Sakeliga heads to High Court over Covid-19 lockdown business regulations

By ANA Reporter Time of article published May 17, 2020

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Pretoria – Business organisation Sakeliga has launched a court case hoping to alter the coronavirus (Covid-19) lockdown regulations across all levels.

"The case involves the unlawfulness of permits and other government licensing requirements for businesses," Sakeliga CEO Piet le Roux said in a statement.

Sakeliga was asking the High Court to set aside a range of licensing requirements implemented under the state of disaster regulations and to protect businesses, non-profit organisations (NPOs), and employees against unlawful obstruction and arrest, he said.

“The public is facing humanitarian, social, and economic catastrophe because of government’s unreasonable and unlawful lockdown approach. Nineteen percent of businesses polled by Sakeliga expect to be bankrupt within a month. 

"No amount of stimulus can repair this, especially not the kind where government puts ideology above need. The economy must reopen and all lockdown regulations that are not essential for health should be set aside.”

Sakeliga would ask the court to order that the government may neither direct organs of state to issue licences, permits or certificates under the state of disaster, nor require businesses to have them, save for businesses’ self-issued permits.

The court was also requested to specifically order that neither the police nor any other enforcement agency may demand a Companies and Intellectual Property Commission (CIPC) or other certificate, permit or licence for essential or permitted services and products, except self-issued permits by the head of organisations, such as already required.

Le Roux said the government did not have the right to require such permits, licences and certificates, and also did not have the ability to implement it. 

“As our court papers show, and as is common knowledge by now, most business in the country are unable to obtain certificates from the CIPC or municipal permits from non-functioning municipalities. 

"Even when obtained, CIPC certificates and municipal permits offer no guarantee against unlawful arrest and obstruction by law enforcement,” he said.

Sakeliga was also asking the court to uphold the separation of powers between national, provincial and local government, and prohibiting national government from instructing provincial or local government to implement business licensing.

"Of note is also that Sakeliga is asking the court to specifically set aside regulations promulgated by the minister of small business development on 12 May. 

"The regulations stipulate that several types of businesses, including so-called (yet undefined) small-scale bakeries, confectionaries and hardware stores, as well as informal and micro restaurants and shisanyamas, and tradesmen and artisans’ businesses, may not operate without a licence from a municipality," Le Roux said.

In support of Sakeliga’s case, several business owners offered supporting affidavits detailing infringements on their rights and dignity, and the harm to their business and customers. Le Roux expressed his gratitude to the authors of the supporting affidavit.

“I thank the business owners who, in the public interest, came forward and were willing to support the case with affidavits, regardless of the risk such public exposure may hold for them personally. We selected several for inclusion in our case.

“Given the urgency of the matter, we were unable to verify all accounts and co-operate with all parties who offered their assistance and support. While papers have now been served on the respondents, we would welcome all further public expressions of support,” he said.

In its papers, Sakeliga took issue with government’s approach to lockdown directives, which was to declare virtually all conduct outside of people’s homes illegal, unless expressly permitted by government. 

In his founding affidavit, Le Roux argues: “I submit that the ordinary grammatical meaning of 'direction' is 'an instruction on how to reach a destination or how to do something'. 

"I submit that a direction may not include an instruction on what to do and what not to do. I further submit that the 'how' should be read restrictively in light of section 36 of the Constitution, that is: that it should have a negative character which restricts specific unacceptable conduct, rather than a positive character which prohibits all conduct except those to which a person is limited or compelled.”

Papers were served on the parties on Friday, May 15, he said. The current attempt to introduce general business licensing requirements were reminiscent of similar efforts by then minister of trade and industry Rob Davies in 2013. 

Eventually abandoned, the Licensing of Businesses Bill was an attempt to repeal the Businesses Act of 1991 and create a national registry for businesses. Under the bill it would have been illegal to operate and trade without being licensed and listed on the national registry, under threat of a fine and imprisonment.

“Government-issued licences for all businesses is an unnecessary, harmful, and dangerous programme,” Le Roux said.

“It was a bad idea and unlawful in 2013, just as it is now. Without licensing having any health benefits, (by) regulation after regulation, government is currently constructing a national business licensing regime as if the state of disaster gives it that right.

“Just as no one needs permission from government to be a consumer, no one needs permission to be a producer. In law, the question of the legality of consumption and production are the same, and neither requires bureaucratic pre-approval. 

"Business licensing harms businesses and consumers across the board, but is a threat especially to smaller business who face high cost of compliance and risk relative to bigger businesses,” Le Roux said.

African News Agency (ANA)

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