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Clarify the definition of ‘essential’ consumer goods

| Legislation

Confusion around the Disaster Management Act’s regulations governing the sale of essential goods has stirred rigorous debate about what may - or may not - be sold.

In the absence of clear messaging from the government, it’s created a situation where ministers mouth off on their personal shopping lists for the public, retailers interpret the regulations how they deem fit and consumers are told that they cannot buy hair brushes, toys, cigarettes or magazines because they’re not considered to be “basic” or “essential” goods.


Western Cape Premier, Alan Winde stumbled over a hornet’s nest, when he announced that retailers were in fact allowed to sell cigarettes, as long as they were purchased alongside food products. That interpretation was swiftly squashed by the police minister, who has now also added alcohol sales to his prohibition wish list.

Winde quickly backtracked, denying he had attempted to defy national regulations around the sale of cigarettes, stating that he would seek clarity from President Cyril Ramaphosa on the regulations. By Thursday, there was still no clarity from either office on the outcome of those discussions.

Dean Macpherson, the DA’s spokesperson on trade and industry, has been vocal about the arbitrary limitations on what can and cannot be sold in stores that are allowed open during the lockdown.

He said the confusion about what were considered “essential items” was “unhelpful” and should be ended.

He wrote to Trade and Industry Minister Ebrahim Patel on April 1 to ask that all stores that are open during the lockdown be able to sell anything that is normally in their stores. No response to date.

Macpherson said it was illogical that a store at a petrol station was not allowed to sell pies or that a grocery store was not allowed to sell prepared, warm food. “We have seen even more ridiculous examples this week such as retail stores closing magazines and snacks shelves and mothers (sic) of newborn babies not being able to buy clothes for their babies.”

On Thursday, the regulations were amended, when products for the care of babies and toddlers were included on the list as an essential goods.

Across the country, the regulations’ interpretations have been left to the discretion of police and retailers. None of the retailers sell cigarettes or alcohol, but at Woolworths, customers can also not buy magazines; Pick * Pay refuses sales of toys, appliances and an assortment of DIY products; Checkers won’t sell stationery; while my local Spar has removed “unessential” products temptation. Clicks had to backtrack after reports came out that it refused to sell condoms.

Rachel Wrigglesworth, Clicks’s chief commercial officer, clarified that personal hygiene products were essential items. “This includes skincare, haircare, hair removal (male and female), deodorants and sanitary products and as essential products they are for sale and available in our stores. The type of products this would include are facial washes, facial cleansers, hairbrushes, shampoos, hair conditioners, razors and condoms.”

She said cosmetics, fragrances, fashion accessories and electrical beauty (for example, hair dryers and straighteners) are classified as non-essential.

“We have sent a communication to stores to ensure they adhere to these classifications and are also educating staff in this regard.”

Pick * Pay said: “We are following the regulation outlined by the government which clearly outlines the categorisation for essential goods and hence why you’ll see some areas in shops are cordoned off: The guidelines are clear. For Pick * Pay stores specifically, we have put up signage to help our customers understand what they may purchase from non-food products.”

Woolworths said: “During the lockdown, we are only allowed to sell ‘essential goods’. ‘Essential goods’ include all food, but does not allow us to sell magazines, toys, clothes, etc.”

Shoprite/Checkers’ media team referred me to their website, saying, “Our actions are guided by national government’s regulations relating to the lockdown.”

Spar declined to comment.

The regulation is not only clear as mud, it’s a fluid document.

The Disaster Management Act says goods that may be sold include any food product, including non-alcoholic beverages; animal food; and chemicals, packaging and ancillary products used in the production of any food product. Cleaning and hygiene products include toilet paper, sanitary pads, sanitary tampons, condoms; hand sanitiser, disinfectants, soap, alcohol for industrial use, household cleaning products, and personal protective equipment; and chemicals, packaging and ancillary products used in the production of any of the above. Products for the care of babies and toddlers; personal toiletries, including haircare, body and face washes, roll-ons, deodorants, toothpaste. Medical and hospital supplies, equipment and personal protective equipment; and chemicals, packaging and ancillary products used in the production of any of the above. Fuel, including coal, wood and gas. Basic goods, including airtime, electricity and withdrawing cash.

Alcohol is, by definition, a food product, but the regulation prohibits the sale of alcohol at on- and off-consumption premises.

Lungi Mtshali, a spokesperson for the Department of Co-operative Governance and Traditional Affairs, said the regulations specify which goods may be sold - all goods not on the list need to be specifically gazetted in order to be added to the list.

“The ministers are required to contribute towards the list. The minister responsible says in our view, this is an essential good, then they will issue directions or a directive, but there has to be consensus on this.”

Attorney Richard Spoor said the definition of essential goods was a catch-all. “There’s nothing in law stating tobacco can’t be sold because there’s no definition of basic goods. But the prohibition is not limited merely to the sale of non-essential goods - factories producing the goods can also not continue to manufacture or produce the goods.”

He said for lawyers, there’s a sense of déjà vu: “During apartheid’s state of emergency, lawyers spent a lot of time challenging regulations, which is happening now too.”


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