What really constitutes lockdown ‘essential goods’?

by Cara du Plessis and Tenisha Burslem-Rotheroe. Living in a state of lockdown has become the new reality for South Africans. The 21-day lockdown, which commenced at midnight on 26 March 2020, is now well underway, however, people are still questioning the terms of the lockdown and the reasoning behind a number of the measures imposed by the Government.

On 25 March 2020, a day before the commencement of the lock-down, the Government published amended regulations in terms of the Disaster Management Act. The regulations specify, amongst other things, what constitutes an “essential good” and provide that all retailers must be closed during the lockdown, except where essential goods are sold. Significantly, they also prohibit retailers, who sell essential goods, from selling any other non-essential goods.

The list of essential goods is currently limited to food, cleaning and hygiene products, medical products, fuel, basic goods (including airtime and electricity), products for the care of babies and toddlers and personal toiletries. This means that any products falling outside this list cannot be sold during the lockdown.

A number of South Africans have expressed their frustration in not being able to buy goods which they personally consider to be essential, such as computer equipment, kettles, children’s toys and books.  However, the Minister of Trade, Industry and Competition, Ebrahim Patel, explained at a media briefing last week that the limitation of what can be sold during the lockdown is aimed at reducing the time people spend in stores. This is necessary in order to limit the spread of Covid-19. Although not entirely clear, we would imagine that the South African government looked to other countries which have implemented lockdowns and the goods which they allowed to be sold during that period.

It bears emphasis that although the list is seemingly limited, there is some room for interpretation. In this regard, the regulations specify that “basic goods, including airtime and electricity” constitute essential goods, but the breadth of what indeed constitutes a “basic good” is by no means clear, with airtime and electricity simply being mentioned as examples. The regulations also provide that the list of essential goods may be amended from time to time. To date we have seen only one amendment, namely the inclusion of products for the care of babies and toddlers and personal toiletries.

In order to determine whether the regulations are being enforced, one would need to visit retailers which ordinarily sell more than purely “essential goods”, for purposes of ascertaining whether they are indeed preventing consumers from purchasing any goods not included in the regulations.

Frustrated South African consumers may also take some hope from the relaxation measures applied in other countries. For example, the New Zealand government recently softened its restrictions in order to allow the sale of certain goods, which people may need to isolate, stay connected, and work or study from home. The list of essential goods which New Zealanders may purchase now includes household appliances, blankets, fridges, heaters, computers and tablets. However, stores selling these goods may only do so via online or telephonic orders.

Although the scope of what constitutes an “essential good” in terms of the South African regulations is currently rather limited, the laudable aims behind the limitation cannot be faulted.

Cara du Plessis is a Senior Associate, and Tenisha Burslem-Rotheroe, a Candidate Attorney, at Webber Wentzel.

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