However, while supermarkets are key to South Africa’s food system, there are different food outlets and distributors that are equally, if not more important, particularly when it comes to the ability of people living in townships and informal settlements to access food.

One key question concerns the permissibility of food systems that operate as an alternative to supermarkets. This could refer to spaza shops and street traders but also box schemes and community-based home delivery mechanisms. Are they permitted to continue operating?

The Minister of Cooperative Governance and Traditional Affairs issued regulations on 17 March 2020. These were amended on 25 March 2020, and again on 27 March 2020 (“the Lockdown Regulations”). The Minister also issued Directions to municipalities and provinces. The question is whether the rules are clear about what type of food trading is permitted.

The general business lockdown provisions

The first provision that must be examined is Regulation 11B(1)(g) of the Lockdown Regulations. This is the general business lockdown provision. It states that “all businesses and entities shall cease …. save for any business or entity involved in the manufacturing, supply, or provision of an essential good or service”.

The starting point must be: what type of entity would be eligible for the exemptions mentioned here? Is it established businesses only, i.e. the well-known supermarket chains? Does it apply only to registered business entities? Or are community organisations and street traders also eligible?

In my view, this rule is aimed at a broad category of entities. It uses a broad definition that clearly intends to go beyond formal established and registered businesses. This is because of the use of the phrase “any business or entity”. “Entity” in this context encompasses any legal entity but also any natural entity, i.e. a person trading in his or her own name or any organisation or organised group. If it was limited to the closed list of business entities, the phrase “business or entity” would have been illogical.

The next step is to examine the two types of exemptions, namely “essential goods” and “essential services”. They are listed in Annexure B of the Lockdown Regulations.

Exemption on the basis of “essential goods”

Item A.1.(i) of Annexure B lists “any food product” as an essential good. Taken together with the general business lockdown provision, the message is clear namely “any entity involved in the manufacturing, supply, or provision of any food product” may continue operations.

In the context of the variety of food sales and distribution mechanisms, it is important to note that the Regulations do not specify any operating model that is required to qualify, i.e. business or not-for profit. It also doesn’t specify how the entity must operate, i.e. whether the entity must operate from a premises, from a stall or on the basis of an online platform. All that is required is that the entity must ‘manufacture, supply or provision food products’. The business model is not what matters. In my view, this exemption is not written exclusively for supermarkets and spaza shops.

Exemption on the basis of “exempted services”

The above argument is underscored by what is listed in section B of Annexure B, which deals with the “exempted services”.

First, the “[p]roduction and sale of the goods listed in Category A” is exempt from the lockdown (B.4 Annexure B). In other words, “the production and sale of any food product” is exempt from the lockdown because it is an essential service.

Secondly, there is a more specific (and narrower) category of services that is exempt, namely “[g]rocery stores, including spaza shops”. This clearly exempts all supermarkets, smaller stores and spaza shops. It does not extend to alternative food networks such as box schemes, online deliveries etc. However, I have already argued that they are covered by the other, broader, exemptions mentioned above.

Places and premises that must be closed

The above two arguments are based on how the Regulations approach the products and services that are exempt from the lockdown. However, in dealing with the other end of the spectrum, i.e. places and premises that must be closed, the Regulations pull in a different direction. This is true at least with respect to street vendors.

Annexure D, item (c)(iii) of the Lockdown Regulations firmly states that “open air food markets” are examples of places or premises normally open to the public, that must now be closed to the public. What does this mean for street vendors?

If any food stall in a public space constitutes an “open air food market”, the single street vendor must close. However, if an “open air food market” is interpreted as a large grouping of stalls that all sell food , the single street vendor would be fine to continue operating as she does not constitute a “market” on her own. What is the correct interpretation? It may be useful to look at how the Constitution distinguishes these matters. In listing the powers of municipalities, the Constitution makes a useful distinction. In Schedule 5, Part B, of the Constitution lists “markets” as an area over which municipalities have authority. However, in that same Schedule, it also lists “street trading” as a separate local government function.

This is significant: the Constitution clearly does not consider “street trading” and “markets” to be the same. It does not consider each single street vendor to constitute a market. In my view, the same distinction must be applied to the meaning of the phrase “open air food market” in the Lockdown Regulations. A congregation of stalls, which attracts a considerable volume of shoppers, is banned for obvious reasons. However, street trading as such has not become prohibited because of the ban on “open air food markets”. A single stall does not fall under the ban, because it is not a market. A more nuanced approach will be required to distinguish between a group of stalls, constituting a “market” and a single stall that does not constitute a “market”.

Duty to impose hygienic conditions and social distancing

Regulation 11B(1)(c) of the Lockdown Regulations places an obligation on retail shops and malls where essential goods are sold to “put in place controls to ensure that customers keep a distance of at least one square meter from each other, and that all directions in respect of hygienic conditions and the exposure of persons to COVID-19 are adhered to”. These are specifically directed at retails shops and malls. They seem to miss the spaza shops, street traders and other types of food distributors. However, it is reasonable to assume that the same duty applies to any business or entity that continues manufacturing, producing or selling food. In other words, if it is argued that spaza shops, street vendors and alternative food distributors falls within the exemptions, it must then also be argued that these duties apply to them. Of course they apply mutatis mutandis, i.e. tailored to the circumstances. A street trader in a confined area cannot be expected to implement the exact same measures as a retail store in a large mall. However, depending on the circumstances, some (but not all) spaza shops and street vendors must be able to adapt their trading practices. For alternative food distributors (such as box schemes and home deliverers), this must also be possible. 

Permits

The Regulations do not state anywhere that a permit is needed to continue operating an entity that is involved in the manufacturing, supply, or provision of food.

With respect to the performance of an essential service, the situation seems to be different. The Regulations contain an Annexure C with a “Form 1 PERMIT TO PERFORM ESSENTIAL SERVICE”. This must then mean that the performance of an essential service may not be done without said permit (even though the Regulations do not make that explicit).

The Minister’s directions to municipalities on the closure of public spaces and facilities

The final important mechanism that impacts on the permissibility of alternative food systems and networks is included in the Directions to municipalities. The Minister of Cooperative Governance and Traditional Affairs has issued Directions to municipalities and provinces under the Disaster Management Act. Unfortunately, these add confusion on the issue of food systems. The Minister’s instruction to municipalities is the following: “All markets including street vendors must be closed, other than food markets”.

So this instruction seems to (1) exempt any food market, even if it attracts high volumes of shoppers in a limited space and (2) ban all street vendors, even the singular street trader. On both accounts the direction seems ill-advised. The exemption of all food markets is too generous and the ban on all street vendors is too narrow. It is suggested that this Direction must be amended or at least clearer guidance must be given. It is important to note that these directions are aimed at municipalities. Enforcement officials may not rely directly on them and they do not bind individuals. That is not the nature of these directions. Their intention is to direct municipalities. Simply put: if they are ignored or misapplied, it is the municipality that will be in trouble, not the member of the public.

Conclusion

If ever the application of new rules took us into unchartered territory, it is now. The Lockdown Regulations and the accompanying directions were of course drafted in great haste and under tremendous pressure. In general, government must be commended for the manner in which it is handling the crisis. However, continued food security in townships and informal settlements during the lockdown is absolutely critical if we want to avoid calamitous effects such as widespread hunger and social unrest. It is unclear whether food provisioning (i.e. the handing out of food parcels) will be sufficient. In fact, it is dangerous to assume that food provisioning can replace the existing patchwork of formal and informal food systems that feed millions of people living in townships and informal settlements. It is therefore important to have legal clarity on what food systems are permitted under the Lockdown Regulations. This is all the more important, given the fact that the enforcement of these regulations is extremely intensive, heavy-handed and carried out by a combination of SAPS officials, municipal law enforcement officials and members of the armed forces.

Subsequent to the first publication of this article, the Disaster Management Regulations were amended to make it clear that informal food traders are "essential services". See https://bit.ly/3buo4EW

By Jaap de Visser

The publication of the Bulletin is made possible with the support provided by the Hanns Seidel Foundation and the Bavarian State Chancellery.