Business group Sakeliga is preparing litigation to undo or mitigate the permit system for doing business. Its goal is to restore the right to work and do business, by preventing arrests and related obstructions where government or law-enforcement unlawfully requires permits and paperwork.
Sakeliga invites businesses and not-for-profit organisations to report incidents of permit- and paperwork-related obstruction by law-enforcement to [email protected]. Incidents should have taken place between 11 and 15 May 2020 and be related to non-court issued permits, such as CIPC certificates, municipal permits, permits to move across municipal or provincial borders, permits for “informal traders”, permits for charitable work such as food aid, etc.
Piet le Roux, CEO of Sakeliga, says its legal team would like to include some of the most egregious incidents in litigation, in support of interdicts and further relief from the court: “We need supporting affidavits to bolster the case and request members and the public to assist us in this.”
CIPC backtracking
As Sakeliga has pointed out on several occasions now, and contrary to police conduct and impressions created by government, there is no requirement for organisations to be in possession of a CIPC certificate. To quote Adv Rory Voller, Commissioner of the CIPC, in a circular dated 11 May 2020: “… the CIPC essential services certificate DOES NOT constitute a permit or permission to provide essential services or goods. […] This option is non-compulsory…”
Sakeliga is advised by counsel that law-enforcement has no right to limit the operations of an organisation based on the availability or not of a CIPC certificate.
“Obtaining a CIPC certificate is impossible for most firms, but even when obtained a CIPC certificate offers little protection against prosecution. We specifically request businesses and not-for-profit organisations to report to us incidents where they were required by law-enforcement to produce CIPC certificates or were obstructed based on the absence or not of CIPC certificates,” says Le Roux.
Insurmountable compliance barrier
“We have seen in the last few weeks how government drew up a novel, opaque and arbitrary regulatory framework, in violation of the requirements of constitutionalism. Under this new system everything not expressly permitted by government – and sanctioned somehow by a permit – is basically deemed illegal. The regulations centralise all power in the executive, with government and law-enforcement acting unilaterally as judge, jury, and executioner.”
Now totalling more than a thousand pages, the State of Disaster regulations “pose an insurmountable and costly compliance barrier to business and the public, jeopardising its purported status as lawful limitations on conduct. No normal person can stay abreast of its proscriptions,” says Le Roux. “It is imperative that we present the judiciary with a plea, for relief against the permit system and centralisation of power in the executive branch of the state, while the memory of generally lawful and constitutional conduct by government is still alive.”
Litigation strategy
Sakeliga’s litigation strategy is to target key unlawful and harmful regulations or interventions that, once countered, should restore as much freedom to work, trade and mutually assist for as many persons and organisations as possible,” says Le Roux. “Our litigation team is moving as fast it can, while dealing with a government that changes regulations on the fly to comply with its unacceptable conduct rather than change its behaviour to comply with requirements such as lawfulness, reasonableness and constitutionalism. Government’s regulatory chopping and changing complicates the effort, but we have been making steady progress and would now like to invite the public to contribute case studies.”
Le Roux observes that Sakeliga’s litigation proceeds after numerous failings and unlawful acts by government: “Government has now failed to respond to our letters, to meaningfully consult, to co-operate when we invoked the mediation it prescribed, or to provide verifiable justification for the measures they are taking relating to the State of Disaster. It is evidently unresponsive. Even key former ANC ministers like Mr Trevor Manuel is now speaking out publicly against the regulations. The numerous cases of litigation currently undertaken is a welcome development.”
Two-pronged strategy
“While litigation is important, I would like to emphasise that changing the official regulatory environment is only one part of a sufficient strategy for restoring constitutional order and public well-being in South Africa,” says Le Roux. “The second – and more important – part is for communities, businesses, individuals and even provinces and local municipalities to find creative ways of resuming life and opening economies by limiting their exposure to the now familiar risks of state failure and regulatory overreach. Doing so is in their own and the public interest, regardless of Covid19, and remains imperative to the well-being of communities across South Africa.”