A letter to employers from the National Employers Association of South Africa (NEASA)
The recent relaxation of the current lockdown to Level 2 has created the perception that the worst part of the lockdown is behind us. Although this may generally be true, Level 2 restrictions still severely impact negatively on certain business sectors. We [NEASA] share the view of legal experts that the lockdown, even the portion of it that remains, is unconstitutional, unreasonable and irrational. Fundamental to this view, is the unequal “freedoms” given to different sectors of society to congregate for both business as well as pleasure. The following serve as examples:
attendance at funerals is limited to 50 persons, regardless of the size and nature of the venue;
gatherings of faith-based institutions are limited to 50 persons (or less, depending on the size of the place of worship). This limitation, again, does not recognise the size and nature of the venue;
conferences and meetings are subject to a maximum of 50 persons, notwithstanding the size and nature of the venue. It should also be noted that conferences and meetings have been restricted to business purposes only;
cinemas, theatres, concerts and live performances (all being leisure activities), are allowed but subject to a limitation of 50 people, again notwithstanding the size and nature of the venue;
casinos, for some unbeknown reason, have a less restrictive limitation which authorises a maximum of 50 persons per available floor space;
auctions have no specific limitation on the number of persons attending the event, regardless of the size and nature of the venue;
sporting activities, especially commercial sporting activities, are not allowed any spectators/customers, notwithstanding the size and nature of the venue;
weddings are again subjected to a maximum of 50 persons, regardless of the size or nature of the venue;
social events at a place of residence, regardless of the size or nature of the venue, is limited to 10 visitors;
social events at function venues, however, are again limited to 50 persons, regardless of the size and nature of the venue;
fitness centres and gyms, regardless their size and nature, are limited to 50 persons;
bars, taverns and shebeens are limited to 50 persons, regardless of their size and nature of the venue;
accommodation businesses are however subject to a different criterium, in that they are limited to not more than 50% of the available floor space in the establishment (with patrons observing a distance of at least one and a half meters from each other);
nightclub businesses are not entitled to trade at all;
busses and taxis, however, are allowed to operate at 100% of their capacity, notwithstanding the size and nature of the vehicle; and
businesses, in general, are allowed to have up to 100 employees present on a floor space, as long as there is adherence to social distancing.
There is no rational or reasonable basis to discriminate between the activities listed above. The illegality of the regulations is obvious if one considers that:
the aim of the regulations is not the enforcement of social distancing and hygiene, but an arbitrary limitation on the number of persons present, regardless of the size or nature of the venue and/or activity;
certain business activities are allowed to operate at 100% capacity, whilst others are forced to limit their service to a maximum of 50 persons (regardless of the size of their business premises);
these limitations unlawfully discriminate against different business and leisure activities, while providing substantially more freedoms to certain other business and leisure activities (even though the limitation offers no real governmental purpose in combating the spread of the pandemic and is neither reasonable nor necessary considering the current progression of the pandemic);
there is no equal application of legal principles to business. The regulations fail to consider or address the de facto position of the myriad of different businesses in the country and seek to categorise them according to some biased governmental classification stereotype; and
the limitation of rights is arbitrary considering similar limitations on other actives, incoherent in its formulation, and discriminatory in its application. Most importantly, these limitations clearly give preference to rights other than the rights being limited.
We share the view that these limitations on business are ultra vires. The Minister of Cooperative Governance and Traditional Affairs (COGTA) has not been afforded the power to regulate the nationwide and general conduct of business. The limitation is furthermore, in our view, an unconstitutional limitation on the right to life and profession.
We are of the view that the regulations should be amended to allow all businesses to operate at full capacity notwithstanding their industry type. There is no basis in law for the Minister of COGTA to limit the rights and freedoms of businesses, their employees and their customers in this incoherent manner. The Minister can merely assist the public in setting guidelines on proper health and safety protocols.
We share the demand that the Minister of COGTA amend all regulations that seek to discriminate between different activities and businesses by placing a limitation on the number of customers or patrons that are allowed to visit business premises.