Business group Sakeliga has launched a case that could alter lockdown across all levels. The case involves the unlawfulness of permits and other government licensing requirements for businesses.
Sakeliga is asking the High Court to set aside a range of licensing requirements implemented under the state of disaster, and to protect businesses, non-profits, and employees against unlawful obstruction and arrest.
Piet le Roux, CEO of Sakeliga, says “the public is facing humanitarian, social and economic catastrophe because of government’s unreasonable and unlawful lockdown approach. 19% 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.”
The court is asked to order that government may neither direct organs of state to issue licenses, permits or certificates under the state of disaster, nor require businesses to have them, save for businesses’ self-issued permits. The court is also requested to specifically order that neither the police nor any other enforcement agency may demand a CIPC or other certificate, permit, or license for essential or permitted services and products, except self-issued permits by the head of organisations such as already required .
Le Roux says that not only does government not have the right to require such permits, licenses, and certificates, but they also do 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.”
Sakeliga is 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 license from a municipality.
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. Members of the media and other interested parties are referred to pages 123 to 145 of Sakeliga’s court papers for these affidavits.
Le Roux expresses his gratitude toward 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.”
Parties interested in co-operation regarding the court case itself is requested to contact Sakeliga’s attorneys, Kriek Wassenaar & Venter (www.kwv-inc.com).
Turning around government’s approach
In its papers, Sakeliga takes issue with government’s approach to lockdown directives, which is 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 15 May. Click here for a (searchable) copy.
Licensing of businesses attempted in 2013 as well
The current attempt to introduce general business licensing requirements are 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 be illegal to operate and trade without being licensed and listed on the national registry, under threat of fine and imprisonment.
“Government-issued licenses for all businesses is an unnecessary, harmful and dangerous programme,” says Le Roux. “It was a bad idea and unlawful in 2013, just as it is now. Without licensing having any health benefits, 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.”