How to stay open during the state of disaster (legal opinions included)

There is currently a great deal of confusion about dealing with the delivery of essential services and products. This letter contains links to legal opinions and can help clear up uncertainty surrounding:

  • businesses (e.g. sole proprietorships) who are struggling to register with the CIPC as “essential businesses”;
  • enterprises that require employees and/or external service providers for the delivery of essential goods and services;
  • security services (such as security companies and neighbourhood watches) with questions about law enforcement; and
  • legal experts (like lawyers) who want to advise their clients.

On Thursday 26 March, Sakeliga published preliminary guidelines for dealing with essential services.  Click here for the steps to follow.
Sakeliga has since received further legal advice from senior counsel. This advice supports the earlier guidelines issued by Sakeliga. This document, however, is a supplement to those guidelines.

  1. Legal opinion on permits for employees as well as other suppliers
    1. The issuing of permits is not only limited to employees – essential businesses (requiring certain services or products) should be able to issue permits to anyone who needs to supply them with services or products, employees or otherwise.
    2.  Click here for a legal opinion by Adv. B Bester on how to interpret the essential services issue.
  2. Legal opinion on CIPC permit system
    1. There are several problems with the CIPC permit system for businesses to register as essential entities. The current system also doesn’t make provision for sole proprietorships and certain other forms of judicature.
    2. Senior counsel advised Sakeliga that in accordance with the new regulations, businesses don’t have to wait for such a permit in order to continue to provide essential goods and services.
    3. Although our legal advisers are sceptical about the enforceability of the process by the Department of Trade and Industry and CIPC, it may be to your advantage to use the permit certificate in case law enforcement officers are under instruction to insist that such permits must be displayed to them.  We suggest that – if possible – such a permit certificate is obtained from the CIPC via www.bizportal.gov.za/essential_service.aspx  and attached to the permits that you as employer issue to your employees.
    4.  Click here for an excerpt from a legal opinion by Adv. P Ellis SC and Adv.  B Bester.
  3. Legal Aids
    1. We recommend that every entrepreneur contacts his legal representative for legal advice on the interpretation of the regulations. However, feel free to pass on to them the information that we provide.
    2. Our attorneys at Kriek, Wassenaar and Venter are already familiar with the general legal opinion and regulations (www.kwv-inc.com/tuis). *Note:  If other law firms can also provide this type of advice and want their information to be passed on to Sakeliga’s members, please send an e-mail to diens@sakeliga.co.za.)
  4. Law enforcement
    1. Sakeliga is currently corresponding with the police and army to assist them with the correct interpretation of the regulations.
    2. We recommend that security companies, neighbourhood watches and similar organisations assist their employees and members in ensuring that law enforcement officers do not overstep their powers.
  5. Steps by Sakeliga
    1. Unfortunately, most law enforcement officers appear to be unsure of the correct application of the regulations.
    2. Sakeliga instructed its legal team to contact the Minister of Police, the Minister of Trade and Industry and other ministries as necessary in this regard.
  6. List of Regulations
    1. Sakeliga has made available a library of all regulations, including those for different sectors, at www.sakeliga.co.za/covid19.
    2.  We are continuously updating them, as quickly and thoroughly as we can. Please let us know if there is anything to add.
  7. Problems?
    1. If anyone prevents your company from providing an essential service, let Sakeliga know by sending an email to diens@sakeliga.co.za. We are currently receiving many inquiries and try to help as much as we can.

Businesses are free to pass on the legal opinions we have made available here to their own legal counsel so that they can apply the correct judgement in their case. Sakeliga will welcome feedback.

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