Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
The Applicant sought a declaratory order that the sixth Respondent “Commission for Intellectual Property and Companies” (the CIPC) had no authority to issue "Essential Service Permits/Certificates" to enable any company or close corporation to conduct essential or permitted services in terms of the Regulations issued under the Disaster Management Act 57 of 2002 ("the Level 4 Regulations"). The Court upheld the claim.
Facts of the case
The Applicant contended that the instruction by the Minister of Trade, Industry and Competition (the third Respondent ) to the CIPC to issue such certificates was not authorized by the Level 4 Regulations and that the CIPC, being a creature of statute, did not have the power in terms of the Companies Act to issue such certificates.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court held that the possibility that the whole country, or specific parts thereof, could be returned to Level 4 or Level 5, was at this stage mere speculation. It could happen or it might not happen. There were at the time no provisions nor need for the issuing of CIPC certificates, even if the issue thereof was previously lawful. The Court found that no enforcement officer was therefore entitled to demand the production of a CIPC certificate by any business, regardless of the nature of the business, and would be acting unlawfully if he or she did so or if he or she arrested, fined, or took any action against any person for failing to produce such a certificate.
Conclusions of the deciding body
The Court declared that the provisions issued by the Minister of Small Business Development (the seventh respondent ) on 12 May 2020 under Government Notice R522 in Government Gazette 34406 were illegal and invalid.
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
In applying the principle of reasonableness, the Court found that the continued requirement for Essential Service Permits/Certificates was invalid since the reference of a return to stages 4 or 5 of COVID-19 rules at the time was rather speculative.
Impact on Legislation/Policy
Court upheld the right to conduct business.