Since the declaration of a national state of disaster in response to the COVID-19 pandemic, South Africans have been presented almost daily with announcements, as well as regulations and directions issued in terms of the Disaster Management Act (DMA). Regulations and directions are formal law, but a regulator does not have the legal authority to order a business to comply with a public announcement or speech.
Section 27(2) of the DMA allows for the Minister of Co-Operative Governance to make regulations, issue directions or authorise other officials to issue directions to deal with a declared national disaster. The Minister has carried out her mandate, and the regulations which govern the national lockdown (DM Regulations) provide for any other minister to issue his or her own directions to combat the spread of COVID-19. Ministers’ authority to issue directions is derived from Regulation 10 of the DM Regulations and ministers’ directions are published in the Government Gazette.
This seems simple enough, but the need for a rapid government response to the pandemic has left gaps in the law. In particular, ministers have made frequent public announcements on what is – and is not – permitted during the national disaster, which are not always consistent with the lockdown regulations.
At the beginning of the lockdown, the Minister of Trade and Industry announced that businesses which provide essential services must register with the Companies and Intellectual Property Commission (CIPC). Essential service providers are issued a certificate permitting them to continue operating. However, the requirement to register and possess a certificate to date do not appear in any regulation or direction by any minister. There is therefore no legal obligation for a business to have an essential services certificate or to halt operations if the CIPC revokes their certificate.
More recently, the Minister of Trade and Industry announced that supermarkets were not permitted to sell hot prepared food, like pies or rotisserie chicken. Food retailers quickly pointed out that the DM regulations classified ‘any food’ as essential and they could legally sell hot food. Perhaps recognising the validity of this argument, the Minister of Co-Operative Governance amended the lockdown regulations to allow for the selling of ‘any food product…but excluding hot cooked food’.
The hot food debate illustrates that a speech or announcement by an official, or even the president, is not law. This remains the case unless and until the announcement becomes a gazetted regulation. Any speech or announcement which is not consistent with what has been gazetted is likewise not law.
Accordingly, a regulator does not have the legal authority to order a business to comply with an announcement or speech. This can be raised as a defence if any action is taken against that business. Nevertheless, the lockdown regulations and directions are updated constantly. We would therefore encourage individuals and businesses to seek legal advice if they think a regulator is acting without authority, as the legal position can change overnight and it may, in some circumstances, be advisable to avoid confrontation with a regulator.