‘We have given him until noon on Tuesday to give his rationale for the ban’
AS THE controversial ban on the sale of cooked food came into effect on Monday, the Democratic Alliance (DA) said it was mulling a legal challenge to the government’s latest prohibition on a consumer item.
“We have given him until noon on Tuesday to give his rationale for the ban. We will then decide if we proceed to court,” DA trade and industry spokesman Dean Macpherson said, referring to trade and industry minister, Ebrahim Patel.
He said it was baffling to understand the minister’s motivation given that the World Health Organisation (WHO) had not advised a ban.
“There is no real rationale, this is a complete overreach by socialist ideologues who want to decide what people can do and what they can’t do, what they can drink and what they can eat,” he said, adding that he believed this was a long-standing bent in the ANC government.
The prohibition was published in the Government Gazette on Monday morning, three-and-a-half weeks after the ban on the sale of alcohol and non-essential goods that come into effect with the national Covid-19 lockdown on March 27.
It was published by cooperative governance and traditional affairs minister Nkosazana Dlamini-Zuma, and amends annexure B of the disaster regulations to state that the regulations allow the sale of “Any food product, including non-alcoholic beverages, but excluding cooked hot food”.
The publication of the amendment follows a statement by Patel last week that selling hot cooked food was illegal, and that all supermarkets had to close the prepared food counters at their shops.
The minister’s assertion was questioned and challenged from several quarters, including business organisation Sakeliga.
The league’s CEO Piet le Roux at the weekend said it had given the minister until Monday morning to give an undertaking that he would cease insisting that cooked food was prohibited.
“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. We have also been advised by senior counsel that there is no lawful basis on which the CIPC (Companies and Intellectual Property Commission) can certify whether products and services are essential or not,” Le Roux said.
Woolworths closed its hot food counters following Patel’s pronouncements, though its lawyers also appeared to be of the opinion that the government was, at this point, acting unlawfully.
Constitutional law expert Pierre de Vos said it was difficult to give a definitive answer as to whether the government was overreaching constitutional limits with certain of its prohibitions.
He said some of the regulations may fail to pass muster because they were simply too vague, including the prohibition on the sale of non-essential goods, because these are not clearly defined.
However, he said, in general the measure of legality would be whether in fact a particular restriction is justifiable in terms of the outcome the limitation on rights seeks to achieve, and whether rights are infringed upon as little as possible in pursuit of that objective.
This is complicated by the fact that in several instances the government has simply not set out its rationale for many of the restrictions. Hence it is not clear how a particular prohibition is believed to be assisting the aim of curbing the spread of Covid-19, and therefore falls within legally permissible limits of infringement.
“We don’t know what the motivation is because they are not telling us. They may have an argument, but we just don’t know.”
Patel’s spokesman did not reply to requests for clarity on the rationale for the ban on the sale of hot cooked food.
The WHO’s recommendations on combating Covid-19 includes a call on the food industry to institute physical distancing and stringent hygiene and safety measures among food workers. It said the industry had to protect workers, as well as improve food hygiene practices.