Covid-19 and Coffee Shops

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In terms of South African law, can a shop, selling essential goods, sell coffee (a hot non-alcoholic beverage) for take-away consumption?

The relevant regulation to be considered in a case such as this is Regulation No. 480 published in the Government Gazette on 29 April 2020 (‘Reg. 480’). According to the Regulation and at Table 1, which sets out the services deemed essential at Alert Level 4, wholesale and retail trade (covering stores, spaza shops, e-commerce and informal traders) are permitted to sell certain food products.

Part E(1) states that food products, including non-alcoholic beverages and pet food, may be sold. In an announcement by the South African Minister of Trade and Industry, Ebrahim Patel, this does not include hot cooked food. This statement was later re-affirmed in Regulation No. 471 published in Government Gazette on 20 April 2020 (‘Reg 471’). It is interesting to note that there is no similar provision expressly prohibiting such sale in Regulation No. 480.

According to Part E(2) of Reg.480, the sale of hot cooked food is only for home delivery. Similarly, Part I(2) states that restaurants are only permitted to operate for food delivery services from 9H00 to 19H00, subject to strict movement. It goes further to say that sit down and pick up is not permitted.

Restaurants can sell meals through delivery services, but takeaway collections from stores are not allowed until Level 3. On a plain language reading of the regulations, one would assume that takeaway coffees that are collected, are prohibited and will remain shut for sit down for the duration of the Level 4 Lockdown period.

A few cafes seem to be planning to utilise deliveries through platforms and applications like Uber Eats and Mr Delivery. The drawback here would be that companies that are able to deliver on your behalf have high commission fees. Some of the larger chain cafes, such as Vida, seem to have found a way to sell takeaway coffees at select venues, such as petrol stations. Other coffee shops are focusing on online coffee bean sales and wholesale.

One may be able to argue that, should a customer come into the store and purchase essential goods (such as bread or vegetables), they are welcome to purchase a take-away coffee for consumption outside of the store. It is interesting that Part E(1) of Reg.480 states that the sale of non-alcoholic beverages is deemed essential. But, in terms of South African law there is no provision excluding the sale of hot beverages or the like.

One may come to the conclusion that as long as essential goods are purchased alongside a take-away coffee and the coffee is consumed outside of the store, this is not expressly prohibited by the regulations. This will be a question of interpretation, as the  regulations remain vague and do not address this specific scenario.

How can we assist you? https://www.simpsonattorneys.co.za/services/

Updated Level Three Government Gazette

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