Law enforcement authorities are acting unlawfully in seeking to stop the sale of cooked food in grocery stores, according to a legal opinion by law firm Webber Wentzel.
The legal opinion requested by retail chain Woolworths states that the definition of what may be sold does not contain any express restriction or exclusion.
Last week trade & industry minister Ebrahim Patel stated that retailers are not permitted to sell hot foods throughout the lockdown period.
“When takeaways and restaurants were closed [when the lockdown commenced] we also communicated to the supermarkets that their hot food sections should be closed,” Patel said. “As the law stands, it needs to be observed. It is very clear what the position is: they are not allowed to sell cooked foods,” the minister said.
The lockdown regulations are meant to restrict the movement of people and contain the spread of the contagious coronavirus.
In its legal opinion Webber Wentzel states that there is no provision in the lockdown regulations that prohibits the sale of any category of food. The law firm pointed out that cooked food is important to many Woolworths customers. Some do not have ordinary cooking facilities, and in many instances consumers, including essential service workers such as health personnel, require the food sold at house bakeries or rotisseries, and other cooked food that is packaged and sold on its normal counters, because they do not have time to cook. This includes frozen prepared food.
“The lockdown regulations permit all grocery stores to sell essential goods. The first subheading under essential goods is headed ‘food’ and the first item under this heading is: ‘any food product including nonalcoholic beverages’,” the legal opinion states.
It highlights that the definition of what may be sold does not contain any express restriction or exclusion.
“The word ‘any’ is intentionally used. The reference of any ‘food product’ means any item that can be consumed by a human being. It does not matter whether the item is raw, processed, frozen or cooked; nor does it matter whether it is healthy or unhealthy; nor does it matter whether it is luxury or not. Whatever the item is, it can be sold to consumers.
“The only consumed item which is implicitly but to explicitly excluded from the category of ‘any food product’ are alcoholic products. The law enforcement authorities are acting unlawfully in seeking to stop the sale of cooked food and confiscating food from counters. They potentially face a significant civil claim,” according to the legal opinion.
The department of trade & industry could not be reached for comment on Sunday.
DA MP and trade & industry spokesperson Dean Macpherson said he has written to Patel requesting him to provide the legal advice he relied on to make this decision to ban the sale of cooked food.
Macpherson said the release of the amended lockdown regulations was a missed opportunity by the government to ease some of the draconian regulations.
“This absurd determination by minister Patel is illogical and ill-considered. It follows a pattern of late by certain ministers which seek to delegitimise the lockdown by advancing regulations that make no sense and are not found in law.”
He said the latest pronouncement by the government will have detrimental consequences for front-line health-care workers, members of the security services, essential service workers and transport workers such as truck drivers who rely on cooked food due to the work they are doing.
“This will also be particularly devastating for the elderly who may be unable to cook food due to their frailty ... we are also consulting with our legal team to obtain a legal opinion on the legality of minister Patel’s actions.
“We cannot allow ministers to arbitrarily undermine the lockdown by acting outside the mandate which is what we are now seeing.”
Despite the legal opinion, Woolworths said it had taken a decision to immediately close all hot food counters to adhere to the communication by Patel, but would be seeking further clarity from authorities.
“We are aware that a letter of guidance drafted for us by Webber Wentzel has been displayed at one of our stores. The opinion provided in this guidance letter was solely intended to be used by store management in possible interactions with authorities who enter our stores, specifically related to the sale of our frozen, cooked prepared food.... We continue to engage with government and authorities to meet the obligations in our delivery of essential goods in compliance with the regulations and to flatten the curve for the good of all,” the retailer said.
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