The government moved quickly to change lockdown rules on the sale of cooked hot food on Monday, a day after supermarket chain Woolworths said the order banning meals such as pies and rotisserie chicken did not stand up to legal scrutiny.

The change comes amid growing anger at some of the stay-at-home regulations, with some businesses and politicians denouncing them as them as  “draconian and unreasonable”. This risked a wider public backlash of the rules meant to limit the spread of the contagious and potentially deadly new coronavirus.

Co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma gazetted amendments to the regulations explicitly banning the sale of cooked food after legal advisers at Woolworths called into question the legality of an order last week from her counterpart in the trade and industry department, Ebrahim Patel.

The previous regulations listed the sale of “any food product including nonalcoholic beverages” as an essential service. The updated regulations state that “any food product, including nonalcoholic beverages, but excluding cooked hot food” may be sold during the lockdown period.

Constitutional law expert Pierre de Vos described regulations prohibiting the sale of cooked hot food as too vague and arbitrary. He also said if there is no rational link between the stated purpose of the lockdown and specific regulation the regulation is unlawful and invalid.

“In a democracy it is impossible to enforce draconian regulations like this by force alone. One needs buy-in from the public, which the public is more likely to give if the purpose of specific regulations is provided and if these motivations make sense,” De Vos said.

The government, which was in a meeting on Monday to work out an economic recovery plan,  has said the regulation are meant to limit the movement of people.

The changes came after business lobby group Sakelig threatened legal action, saying “there is no lawful restriction on the production of ‘warm’, ‘cooked’ or ‘prepared’ food” and after Woolworths had also obtained a legal opinion from law firm Webber Wentzel, which stated that there is no provision in the lockdown regulations that prohibits the sale of any category of food.

DA MP and trade & industry spokesperson Dean Macpherson said Dlamini-Zuma has hurriedly amended the lockdown regulations to explicitly ban the sale of cooked foods “in an attempt to put a lid on the public humiliation minister Patel was subjected to after he stated on the 16th of April that ‘as the law stands’, the sale of cooked food was banned. This was clearly unlawful and Patel had to rely on his cabinet colleague to cure his legal nightmare.”

The DA was set to approach the North Gauteng High Court and lodge urgent papers to have Patel’s says declared unlawful as well as seek a personal costs order against him.

“Today’s amendment now makes what was illegal, legal and is short-sighted and mean spirited, especially for front line health-care workers, members of the security services, essential services workers and transport workers like 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,” Macpherson said.

He said he will  write to Patel through the party’s lawyers, requesting the reasons for the ban on cooked and prepared food which should be provided by midday on Tuesday.

“We will then be able to decide on our next course of action. The DA remains committed to ensuring that the executive does not overreach its mandate as we have seen. It is an important test case in the lockdown to ensure that ministers treat citizens with the respect they deserve and are held to account for their actions.”

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