The business organisation announced it will proceed with its case placed on the roll of the Pretoria High Court for Tuesday May 26 after failed mediation attempts. 

An unanswered request for mediation lodged on May 2 and further regulatory overreach on May 12 resulted in Sakeliga issuing an urgent application against the state on May 15, Sakeliga CEO Piet le Roux said in a statement.

Sakeliga is asking the court to set aside several business licensing requirements, under which businesses are forced to seek pre-approval from the state. 

The May 2 mediation request was made in terms of regulation 13 of the state of disaster regulations published on April 30. Receipt of this request was acknowledged by a number of state officials, but otherwise ignored, he said. 

Sakeliga then proceeded with its litigation and on May 15 served urgent papers on President Cyril Ramaphosa, Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, and several others, including the National Coronavirus Command Council (NCCC). 

The serving of papers prompted action. Late on Monday May 18, the state attorney asked whether Sakeliga would still be willing to enter mediation. On May 17, Sakeliga indicated that it would agree on condition that the mediation be initiated and finalised by Friday, May 22, and that it be undertaken without prejudice, Le Roux said.

Sakeliga also cautioned that the case had been set down for May 26, that the respondents’ opposing affidavits were still outstanding, and warned that it did not condone late filings. On May 22 - a full 20 days after its initial request for mediation - Sakeliga finally heard from Solicitor-General Fhedzisani Pandelani. Surprisingly, his office did not offer apologies for its delayed response, but instead accused Sakeliga of presenting “unconscionable” conditions and an attempt to “merely tick-the-boxes”. 

Sakeliga took exception to these allegations and the partial conduct of the office of the solicitor-general. The solicitor-general appeared unable to impartially manage a government-facilitated mediation process as one would have hoped to glean from the wording of regulation 13.

"It is unacceptable for a facilitator to become a party to a dispute. We conclude that the solicitor-general has formed a detrimental and improper view of our conduct as well as the urgency of our case,” Le Roux said.

“I now consider it in the public interest to note the deficiency of state-sponsored mediation. Parties attempting this mediation risk facing a partial facilitator and the state delaying their cases, while suffering uninterrupted material harm under arbitrary and unlawful lockdown regulations. 

"In our experience so far, state-sponsored mediation appears to be a fruitless exercise. Whether through its lack of urgency, capacity or otherwise, our experience is that the state is ill-equipped to effectively respond to urgent public disputes,” he said. 

When considering dispute resolution as an alternative to litigation, parties would be better served to approach impartial facilitators from the outset. To all parties seeking to undo arbitrary and unlawful lockdown regulations, whether through alternative dispute resolution or litigation, "I express our appreciation and best wishes”. 

"The respondents are yet to file opposing affidavits, despite being grossly late by now. Sakeliga is proceeding with its case placed on the roll of the Pretoria High Court for Tuesday 26 May," Le Roux said.

African News Agency