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New lockdown regulations, which prohibit the distribution and selling of warm and cooked food, is putting the most vulnerable members of our population at increased risk and was probably rushed through to avoid legal action, according to business organisation Sakeliga.

This follows after Sakeliga demanded in last week that the Minister of Trade and Industry, Ebrahim Patel, provide an undertaking to cease and reverse his pronouncements prohibiting the production and sales of “prepared”, “warm” and “cooked” food. The Minister had made such pronouncements in the absence of any regulations actually being promulgated to that effect.

On Sunday legal advisers for the Minister informed Sakeliga’s attorneys that they are seeking a legal opinion on the matter and that they will respond by Wednesday, 22 April 2020. Before, however, negotiations could proceed, the latest amendment to the lockdown regulations was issued – which now specifically prohibits the sale of “cooked hot food” from the list of essential goods and services under the regulations.

“This amendment was clearly drafted over the weekend as part of a strategy to avoid a legal challenge on the issue. We are disappointed that government has chosen to go about it in this way. This was an excellent opportunity to engage with business to find new, creative solutions to our current problems,” says Daniel du Plessis, legal analyst for Sakeliga.

“Minister Patel’s legal representatives on 19 April 2020 informed our attorneys that they are waiting on a legal opinion before they will respond to our demand. It is however now clear that an amendment was already in the process of being signed off by the Minister of Cooperative Governance and traditional Affairs, at the time of the sending of the letter to our attorneys.”

Sakeliga has stated that it will be referring the matter to its legal team. Even though the regulations have been amended to expressly ban the sale of warm, cooked foods, Sakeliga believes the regulations may be inherently irrational.

“Thousands of people, especially essential service providers such as supermarket staff, maintenance workers and medical workers rely on warm prepared food on a daily basis. Government has yet to explain why they consider the sale of hot food to present a high-risk in the spread of the Covid 19 virus.”

“What government has, however, also failed to consider is the drastic effect that this ban will have on children, the poor and the elderly who rely on various social services to provide them with food on a daily basis. Many of these persons do not own the necessary equipment to heat and prepare their own food,” Du Plessis continued.

“It has, unfortunately, become a trend that many of these regulations are applied in an arbitrary manner. The CIPC is, for instance, apparently in the process of withdrawing essential service certificates for restaurants which have transitioned into being bakeries and delis. Such activities are, however, explicitly stated to be allowed in terms of the regulations – and represent an excellent way for these businesses to keep on supporting their customers and workers. Instead of talking to business and encouraging creative ways for restaurants to remain competitive and continue business under the lockdown, government threatens criminal prosecution” says Du Plessis.

Du Plessis argues that the consequences of careless regulations could be dire.

“If something is not done immediately, even entirely legal, essential businesses may be unsure of their status. We would like to see a more nuanced, consistent and thoughtful approach from government. It is important to note that South Africa’s restrictions on these businesses are far more extreme than what is warranted by the vast majority of international expertise – including recommendations by bodies such as the World Health Organisation.”

Sakeliga is in discussions with representatives from the restaurant industry as well as those operating in the non-profit social services sector regarding a potential challenge to the amended regulations.

Sakeliga intends to accept the Minister’s invitation for a meeting and hopes it will be an opportunity to discuss new and innovative solutions which strike an appropriate balance between safety and sustainability.

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