IOL 03 June 2020

Pretoria – Businesses are now free to trade with only their self-issued permits, without government licences relating to the state of disaster.

Judge Johan Louw, sitting in the Gauteng High Court, Pretoria, has declared that the directions issued by the Minister of Small Business Development on May 12 are illegal and invalid.

No enforcement agency may require an essential services business certificate or any other licence that was not required before the state of disaster was declared, the judge said.

While several types of businesses such as restaurants – as announced in the level 3 regulations – remain prohibited, all other businesses are free to operate.

And they do not have to first obtain a new government licence from national, provincial, or local government or any other organ of state.

This victory for businesses followed business group Sakeliga’s application to court, as well as Minister of Trade and Industry Ebrahim Patel and the Companies and Intellectual Property Commission (CIPC) peremptory withdrawal of the certificate system on Sunday.

The judge set aside the regulations which were not withdrawn by government and confirmed the unlawful status of any would-be CIPC certificate enforcement.

Sakeliga asked the court to declare that the CIPC had no authority to issue essential service permits or certificates to enable any company to conduct essential services under level 4 of the lockdown regulations.

The organisation argued that the instruction by Patel that such certificates had to be issued, was not authorised under level 4.

Government argued that as new regulations were issued under level 3 whereby most businesses – apart from those which were stipulated by government – could resume operations, the issues were now academic.

But Sakeliga argued that it was still important because metropolitan areas identified as Covid-19 hot spots could any time go back to level 4 or even level 5 of the lockdown regulations.

The judge said as matters stood, all businesses and institutions may operate, apart from those mentioned by government.

He said businesses which provide essential services were no longer singled out as the only businesses permitted to operate and who must have certificates to do so.

The judge said the country may or may not go back to level 4 or 5, but as things stood, there was no need for the issuing of certificates by any business, no matter the nature of the business.

“No enforcement officer is therefore entitled to demand the production of a CIPC certificate by any business.”

The judge said it would thus be unlawful to arrest or fine anyone without such a certificate.

Piet le Roux of Sakeliga said: “The court case is a victory for freedom to do business in South Africa. Under the guise of a medical crisis, the state was implementing a general system of business licensing in South Africa.”

He added that through uncertainty and red tape, government severely restricted businesses’ ability to operate even when permitted under the often arbitrary and harmful regulations.

The SA1st Forum said it applauded the judgment and said it hoped that the government must sit up and take note.

“In essence the court said that ministers dont have free reign to do as they wish and issue regulations that are not balanced and well-thought though,” it said in a statement.

“Whatever they do must pass Constitutional muster and cannot be done on some grounds that we are unaware of.”

It added that the judgment could have far-reaching implications and asked that the government not rush the issuing of “clumsily drafted and confusing regulations.”

“We appeal to government to put our people, country and Constitution first.”

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