Woolworths to close hot food counters, despite legal opinion

Woolworths has reiterated that it will no longer sell hot food, like rotisserie chicken and pies, despite their lawyers telling them that the government was acting outside of lockdown regulations. 

However, the retailer will continue to sell frozen, cooked prepared meals.

Trade and Industry Minister Ebrahim Patel told a media briefing last week that the selling of hot food by supermarkets was outlawed by lockdown regulations. 

In response, Woolworths briefed its attorneys Webber Wentzel to provide a legal opinion on the matter, that could be used by store managers if they are confronted by law enforcement agents. 

Journalist Gus Silber posted a copy of the opinion on Twitter on Saturday after seeing it in his local Woolworths branch.

Gus Silber

✔@gussilber

Legal letter in my local Woolies, advising that the enforcement authorities are acting unlawfully in seeking to stop the sale of cooked food from counters, and that they potentially face a "significant civil claim". 

1,005

4:48 PM - Apr 18, 2020

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A Woolworths spokesperson has now confirmed the legitimacy of the letter. "The opinion provided in this guidance letter was solely intended to be used by store management in possible interactions with authorities who enter our stores, specifically related to the sale of our frozen, cooked prepared food," the spokesperson said.

"At the ministerial press briefing that took place on 16 April, it was communicated that retailers are not permitted to trade the hot food counters in their stores. While this has not yet been formally promulgated in the regulations, and we are seeking clarity on the way forward, we took the decision to close all hot food counters with immediate effect to adhere to the communication by [Patel]."

In the legal opinion, an attorney from Webber Wentzel states that cooked food is "vitally important to many Woolworths consumers". Some customers do not have kitchens or time to cook. "This applies particularly to essential service workers such as health workers."

The lawyer further argues that selling cooked and frozen prepared food helps to achieve the purpose of the lockdown, by allowing customers to store food at home. 

The lockdown regulations allow the selling of "any food product, including non-alcoholic beverages". This, including to the legal opinion, means "any item that can be consumed by a human being... it does not matter whether the item is raw, processed, frozen or cooked; nor does it matter whether it is healthy or unhealthy; nor does it matter whether it is luxury or not. Whatever the item is, it can be sold to consumers."

Following Patel's announcement, the Companies and Intellectual Property Commission (CIPC) tweeted on its BizPortal account that prepared food is not allowed to be sold during the lockdown.

BizPortal@BizPortalGovZa

Prepared food is not allowed to be sold during the lockdown period. Supermarkets are also not allowed to sell cooked food.

If you know of one, please report them to the @SAPoliceService.

We are revoking fraudulent applications and referring them to @the_dti for legal action.

103

4:43 PM - Apr 16, 2020

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Woolworths' lawyers have rubbished this, saying the only prohibition in the government's regulations is for alcohol. 

"Outside of that single exclusion, any other food item can be sold during the lockdown period. The enforcement authorities are acting unlawfully in seeking to stop the sale of cooked food and confiscating food from the counters. They potentially face a significant civil claim."

Woolworths says it will continue to engage with government and authorities to "meet the obligations in our delivery of essential goods in compliance with the regulations and to flatten the curve for the good of all".