South Africa, High Court, 1 June 2020, 22352/20

Case overview

Country
South Africa
Case ID
22352/20
Decision date
Deciding body (English)
High Court
Type of body
Court
Type of Court (material scope)
Civil Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
State Court
Instance
1st Instance
Area
Freedom to conduct a business
Outcome of the decision
Claim upheld
Link to the full text of the decision
Decision_EN available on sakeliga.co.za
General Summary

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
National government measure
Measures, actions, remedies claimed
Annulment of the administrative decision
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Urgency
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
Freedom to conduct a business
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health v. freedom to conduct a business
General principle applied
Reasonableness
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.

Author of the case note
Professor Emmanuel Kasimbazi, Makerere University