Legal action warning over 'irrational' orders
Business group Sakeliga has threatened legal action against the Department of Trade & Industry (DTI) unless Minister Ebrahim Patel reverses his recently announced restriction on the sale of warm or cooked foods, notes a News24 report.
‘We have been advised that there is no lawful restriction on the production of 'warm', 'cooked' or 'prepared' food as the Minister and his department continues to insist,’ Sakeliga CEO Piet le Roux said in a statement.
‘Sakeliga will be taking the Minister … to court unless he ceases and reverses his department’s unlawful, irrational, and harmful obstructions to food production.’
The group has given Patel until 9am today to respond or they will take legal action.
Le Roux said their legal advice went against what the department and Patel had said.
‘We have also been advised by senior counsel that there is no lawful basis on which the (Companies and Intellectual Property Commission) can certify whether products and services are essential or not. Officials keep issuing these arbitrary directives in press statements and tweets, but nothing of the sort has been promulgated. The DTI’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.’
He also said that every food item on a shop shelf was already prepared in some way. He added that it would be impossible to comply, and would decrease food supply and increase prices.
Woolworths has been told by its lawyers that government was acting outside of lockdown regulations on the sale of prepared food.
In response to Patel's instruction on hot foods, Woolworths briefed its attorneys Webber Wentzel to provide a legal opinion on the matter that could be used by store managers if they are confronted by law enforcement agents, notes a second News24 report.
In the legal opinion, an attorney states that cooked food is ‘vitally important to many Woolworths consumers’. Some customers do not have kitchens or time to cook. ‘This applies particularly to essential service workers such as health workers.’
The lawyer also argues that selling cooked and frozen prepared food helps to achieve the purpose of the lockdown, by allowing customers to store food at home. The lockdown regulations allow the selling of ‘any food product, including non-alcoholic beverages’.
This, according to the legal opinion, means ‘any item that can be consumed by a human being... it does not matter whether the item is raw, processed, frozen or cooked; nor does it matter whether it is healthy or unhealthy; nor does it matter whether it is luxury or not. Whatever the item is, it can be sold to consumers.’
Following Patel's announcement, the Companies and Intellectual Property Commission tweeted on its BizPortal account that prepared food is not allowed to be sold during the lockdown.
Woolworths' lawyers have rubbished this, saying the only prohibition in the government's regulations is for alcohol.
‘Outside of that single exclusion, any other food item can be sold during the lockdown period. The 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.’
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