What Sakeliga’s court case means for business in practice
Sakeliga’s court case against business licensing was a victory for business freedom in South Africa. Through Monday’s judgment and the pre-emptive reform undertaken by a government under pressure of litigation, businesses are once again free to do business without government pre-approval.
As a result of Sakeliga’s court victory on Monday, and with the commencement of lockdown level 3, no additional permits, licences, or certificates may be demanded from businesses or their employees under the auspices of the Disaster Management Act regulations.
Regrettably, certain prohibitions for certain types of business remain, although this is strictly limited to what is set out in the level 3 lockdown regulations.
This media statement sets out the rights of businesses and the few remaining regulatory requirements.
Unlawful for law-enforcement to demand permits, issue fines, obstruct business
We are advised by our legal team that (with exception of moving between municipal or provincial districts, see below) all businesses, employees and contractors that are permitted to work, may travel for work, permit-free.
The freedom to move and trade within the district in which a person resides holds irrespective of whether a permit would have been self-issued (the so-called Form 2-permit under the regulations) or government-issued (such as the discontinued CIPC certificate). Consequently, it would be unlawful for any law-enforcement officer to do the following to a business, employee, or contractor:
- Demand a permit or license relating to lockdown
- Demand a CIPC certificate
- Obstruct, arrest, or interfere in any way with business activities because of a failure to provide a permit, licence, or certificate relating to lockdown
- Issue any fines for travelling or doing business without permits, licences or certificates relating to lockdown
One exception: Movement between districts
We are advised that there is only situation in which law-enforcement officers may demand a business’s self-issued Form 2 permit: at the boundary and when travelling between provinces, metropolitan areas, and municipalities.
No permits for business-related purposes under alert level 3 of the State of Disaster may be demanded as part of government’s disaster management measures.
Consequences of not having a permit at border-crossings
While remaining a prohibited activity under the level 3 regulations, the failure to carry or present a Form 2 permit when attempting to cross a district boundary has not been made a criminal offence in terms of the regulations.
Since it is not an offense, law-enforcement may only act to prevent unpermitted border-crossing, and nothing more. No fines may be issued, and no arrests may be made with regard to it by any law-enforcement officer.
It should however be noted that law-enforcement will be entitled to require compliance with the regulations. In this regard disregarding a lawful instruction to comply with the regulations might constitute obstruction, which is an arrestable offence. We have been advised that a lawful instruction under these circumstances can only be an instruction not to cross the district boundary.
Comprehensive list of offences
Sakeliga’s legal advisors have compiled a comprehensive list of what constitutes offences under the level 3 lockdown regulations. Outside of the items listed on this, law-enforcement officers cannot lawfully intrude on a person’s freedoms unless they are enforcing specific prohibitions under the lockdown regulations.
The list may be accessed here.
Invitation to report contraventions of the above
Sakeliga invites businesses that have experienced contraventions of the above, such as issuance of fines or arrests, or demands for permits or certificates or licences, to report it to our helpline. Reports may be submitted to firstname.lastname@example.org.