South Africa


Author

Overview of response to the Coronavirus as at 30 July 2020.

Please note: Due to the extraordinary situation, the legislation is in continuous evolution and may change without such change having been recorded on this platform.

Introduction

THE REPUBLIC OF SOUTH AFRICA is a young democratic republic, with a democratically elected government. As a constitutional state, it is made up of a hybrid or mixed legal system comprising of Civil Law inherited from Roman-Dutch Law, Common Law inherited from English Law, and Indigenous [African] Customary Law. The Constitution (including the Bill of Rights) is the supreme law of the land, and all legislation must confirm and be consistent it.

The sources of law in the country are as follows: the constitution, legislation (statutes/acts of the national and provincial legislatures, and governmental regulations), common law, judicial precedent, customary/indigenous law (including law practised in the community, law in statutes, case law or text books on official customary law, judicial precedent, customary/indigenous law (including law practised in the community, law in statutes, case law or textbooks on official customary law, and academic law), religious personal laws, international law and writings of authoritative publicists of the law.

With the advent of COVID-19, the president of the country declared a state of disaster. As a consequence, the governing legislation and directives, rules and regulations have been informed and directed by the Disaster Management Act, 2002 under the direction of the Department of Co-Operative Governance and Traditional Affairs. A National [COVID-19] Command Council (NCC) is a government group established to discuss, deliberate and make decisions on steps the country should take to manage the pandemic during the lockdown risk alert levels. Various remedial measures have been put in place to assist the public and the economic distress that the country and its citizens have suffered as a result of the pandemic.

South Africa has 5 risk alert COVID-19 levels, with risk alert level 5 being the most severe resulting in a total and complete nationwide lockdown. Risk alert level 5 was implemented on 27 March 2020. The country moved to level 4 on 01 May 2020. As of 01 June 2020, South Africa moved to risk alert level 3. Under this latest risk alert level, various restrictions have been relaxed and the economy has been re-opened to most of the sectors to enable citizens to return to work.

Directives are issued as and when changes are pronounced by the president during nationwide briefings. For the lockdown level 3 directive click here: Level 3 Regulations

NB: The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of any of the contributors/authors. Online visitors should not take action upon this information without first seeking professional counsel.

1. INTERVENTIONS AND RESTRICTIONS

1.1 Lockdown Regulations

The Governing Legislation

Lockdown Risk Alert Level 3

Lockdown regulations for risk alert level 3 were eased as from 17 June 2020. With South Africa passing 100 days of lockdown, the President’s latest briefing announced that the country will remain on risk alert level 3. However, due to the marked increase in infections and with South Africa reaching its pandemic peak, the President’s latest briefing saw a review and tightening of some of the restrictions previously eased under this risk alert level 3. The following are some of the regulations applicable to citizens under this level:


  • Social distancing and sanitising are a requirement. The wearing of masks in public is legally mandated.

  • Whereas the daily curfew had been lifted, the tightening of restrictions has seen a curfew being re-imposed on citizens: this curfew imposed will run from 22h00 (10pm) to 04h00 (4am) as from 30 July 2020. Exempted from the curfew are people who need to travel to and from work or who need to seek urgent medical or other assistance during this time. In cases where business and companies have re-opened for business, citizens may travel to and from work (now seemingly without the need for travel work permits); citizens may visit shopping centres to purchase essential goods such as food, medical supplies, winter clothing.


  • Evidence has shown that the resumption of the sale and purchase of alcohol has resulted in immense pressure being put on hospitals, trauma and ICU departments due to motor vehicle accidence, violence and related trauma. Consequently, the sale and purchase of alcohol has been suspended with immediate effect to enable health officials, facilities and hospitals to cope with the increased number of COVID-19 related infections. E-commerce sales of alcohol is permitted for export.

  • Smoking in public and the sale and purchase of cigarettes and tobacco products, tobacco related products, and e-cigarettes is still prohibited, except where destined for the export market. There is litigation in this regard - see the section under Courts.

  • Citizens are still, in terms the regulations, not allowed to congregate in groups or visit friends and family members at their homes. There is a general prohibition on crowds.

  • Exercise is allowed from 06h00 - 18h00 in groups of no more than 4 persons who are to observe social distancing, according to the regulations. However, the prohibition on the 5km radius has seemingly been done away with.


For the lockdown level 3 directive click here: Level 3 Regulations and as amended: Amended Level 3 Regulations

For a list of all lockdown regulations to date click here: Link

1.2 Border Control and Travel

International

Under lockdown risk alert level 3, South Africa's borders remain mostly closed to the international community, especially for persons from high risk COVID-19 countries.

Air travel is allowed for the following:

  • Repatriation of citizens, foreigners, and permanent residents

Ports remain closed to tourists but are open for imports and exports (see relevant section)


Domestic

  • Domestic air travel has been allowed as of 1 June 2020 for business purposes under risk alert level 3.

  • Domestic air travel for essential travel is allowed. This includes:

    • Moving to a new place of residence

    • Moving to take care of an immediate family member

    • To attend school or an institution of higher learning

    • To attend funerals

    • For emergency medical treatment reasons

  • Domestic air travel for leisure purposes is not allowed

  • Prescribed documentation must be presented.

  • Only four airports will initially be open for domestic air travel:

    • Cape Town International Airport

    • OR Tambo

    • Lanseria

    • King Shaka Airport in Durban.

  • No in-flight catering or in-flight magazines will be made available onboard.

  • All airplanes will be disinfected before entering into service and after each flight.

  • Each aircraft must be equipped with special Hepa air-filters.

  • Only passengers and airport staff will be allowed inside airport terminals.

  • Temperature checks will be conducted when entering the airport terminal buildings.

  • No passengers will be allowed inside the airport terminal buildings without masks.

  • Long-distance road travel has been allowed between provinces for work/business purposes, medical treatment, funerals and educational purposes. Mini-bus taxis may operate at 70% capacity for long-haul trips. Local trips may operate at full capacity.

  • Long-distance rail travel is still prohibited.

Repatriation

  • Agreements are in place with various countries for the repatriation of South African citizens and foreign nationals. Quarantine of a minimum period of 14 days is mandatory for citizens arriving from high risk countries.

1.3 Visas

No visas (business / tourist) are currently being issued to foreigners, especially foreigners from high risk countries.

1.4 Ports

Exports and Imports

Ports have been re-opened for the import and export of trading goods and cargo.

Passenger ships

Ports remain closed to passenger liners.

1.5 Prohibition of Crowds

No public gatherings are allowed under lockdown risk alert level 3.

1.6 Education

The academic year usually runs according to the calendar year (mid-January to the first week in December) and in divided into quarters (3 months per term). Due to the COVID-19 pandemic, the school year was interrupted towards the end of the first term (most schools closed on 18 May 2020). Parents may elect to homeschool children, and submit the necessary registrations.


Higher Education

This refers to education at a tertiary level. The academic year has been carried over to March 2021.

  • Tertiary institutions have re-opened to 33% of the student population who may return to campuses, residences and campus sites. Procedures have been put in place for students to register for data to allow for access to classes / materials online.

  • Third year / final year (2020 graduating) students who have to conduct practical work have been able to return to campuses. Social distancing and risk protocols are in place.

  • Learners of private tertiary institutions have also been affected and they have not returned to classes. Where possible, interactions have taken place online. Various higher learnig institutions have put in place processes to upload previous examination papers for students to work through in preparation for examinations.

Basic Education

This refers to primary and secondary school education.

  • Public (government) schools have reopened to learners of grades 7 and 12 on 8 June 2020. The return of further grades has not been decided; this will depend on the readiness of public schools to accommodate for social distancing of scholars.

  • Private schools are not subject to the same re-opening restrictions as public schools and may elect how soon after 1 June they may be ready for further grades to return to school. This is dependent on social distancing being observed and risk protocols being in place.

  • Further grades have returned to school on 6 July 2020 and 3 August 2020; this includes the return of early childhood development scholars, scholars with disabilities and special needs scholars.

  • As at 27 July 2020, the President announced that public schools would close for a period of 1 (one) month, and public schools would re-open on 24 August 2020. Grade 7 learners would, however, return to school after 2 (weeks) from 27 July 2020, and grade 12 learners would return to school after 1 (one) week from 27 July 2020.

  • The writing of the May and June examinations has been postponed and will be merged with the end of year (November) examinations.

  • The Department of Basic Education and the South African Broadcasting Commission (SABC) have launched a multi-media learner support initiative under the banner COVID-19 Learner Support aimed at limiting the impact of the lockdown to the school calendar.

Foreign Students outside the borders

These students may not re-enter the country at this point in time and should continue with their studies virtually, until the borders are re-opened.

1.7 Open Businesses, Industries and allowed Gatherings

Businesses - essential service providers and others

Under lockdown risk alert level 5, all businesses that were permitted to provide essential services were required to seek and obtain approval from the Department of Trade and Industry (via the Companies and Intellectual Property Commission - CIPC) in order for them to trade. With the country having moved to lockdown risk alert level 3, most businesses (that have been able to) have re-opened for business, with strict operating procedures and conditions to be put in place. All places of business, workplaces and institutions are required to appoint a designated coronavirus official who is responsible for making sure that all regulations and all precautions are strictly adhered to.


Religious / Faith-based institutions

  • Churches have been declared an essential service and may re-open to their congregants, however, no more than 50 congregants may attend a worship service at one time. Risk protocols are to be put in place, like wearing of masks, sanitising agents are to be used and social distancing is to be observed.

  • No public or private gatherings of any kind are allowed under lockdown level 3.

  • Funeral gatherings are limited to 50 person attendance.


As per the President's address on 17 June 2020, lockdown restrictions had been eased for the following businesses. However, to comply with and adhere to strict pandemic prevention protocols, these businesses are required to put the necessary precautionary measures in place:

  • Restaurants / food outlets / coffee shops, in addition to being permitted to operate delivery and take-away services, have now been permitted to open their doors to dine-in / sit-down patrons. With the immediate suspension of the sale and purchase of alcohol, the sale and purchase of alcohol for on-site consumption will now also be suspended and/or prohibited.

  • Casinos may reopen to the public, with limitations as to the number of persons, amongst other protocols to be in place.

For the latest protocols pertaining to the above-mentioned industries, click here: Link

  • Personal care and grooming salons, including hair and nail salons and beauty therapists and parlours, barber shops, tattoo and piercing artists, and masseurs may now re-open their doors for business. Industry specific protocols are to be adhered to. For the rules pertaining to this industry, click here: Protocols

  • Conference / business meeting venues may re-open in line with restrictions on public gatherings and protocol specific measures.

  • Accredited and licensed accommodation venues may re-open for business, subject to adherence to protocols and measures being put in place. This, however, specifically excludes home-sharing and air b’n’b businesses. (see also Specific Sectors: Tourism)

  • Entertainment and recreation places, such as casinos, cinemas, theatres may re-open for business, subject to adherence of protocols and measures having been put in place.

  • Museums and libraries have been permitted to re-open.

  • Auction houses may re-open for business, with specific protocols to be adhered to.

  • Parks will be open for exercise, but not for any form of gathering.

Closed Business

Businesses such as gymnasiums, nightclubs, bars / pubs, and open-air markets remain closed.

1.8 Health Care

Persons having contracted the virus are required to go into self-quarantine for a minimum of 14 days. Social distancing is still a requirement. The wearing of masks in public is legally mandated. Employers, shop owners and managers, public transport operators, and managers and owners of any other public building are now legally obliged to ensure that anyone entering their premises or vehicle must be wearing a mask. Hand washing and/or sanitising is still strongly encouraged.


The Numbers

  • Tests conducted: +/- 2.9 million with more than 20 million screenings having been completed

  • Confirmed cases: +/- 471,000, with Gauteng now being the epicentre, followed by the Western and Eastern Cape.

  • Recoveries: +/- 300,000 (recovery rate is currently at 63%)

  • Death toll: +/- 7,500 (mortality rate is currently at 1.6%)

  • New cases: +/- 11,500

  • Hotspots are closely monitored

Persons with higher risks

  • Elderly persons (over 60 years)

  • Persons with HIV/ AIDS, tuberculosis, existing respiratory challenges and other pre-existing conditions, such as high blood pressure, and diabetes are at higher risk of contracting the virus and are to take extra care.

Mandatory Isolation / Quarantine

Persons who are suspected of a) having contracted the coronavirus, b) having been in contact with someone who may have the coronavirus, c) who have asymptomatic symptoms are required to isolate themselves (self quarantine) or are quarantined in hospitals or other quarantine facilities.


Testing

Tests completed: +/- 2,900,000


Trials/Drugs

Based on a drug trial undertaken in the UK, the Minister of Health announced that the drug Dexamethasone, which is a drug manufactured in South Africa, has been proven to reduce deaths of persons on ventilation by up to 33%. South Africa has a supply of this drug and is administering same to patients in need thereof.

1.9 Sanctions

  • If found guilty of violating lockdown regulations, arrest, detention / imprisonment, fines and/or court appearances.


  • The Auditor-General has also adopted special measures to safeguard funds committed to the fight against COVID-19. Special audits have been undertaken to detect and prevent misuse of these funds and to identify risks in the system. Government has established a collaborative and coordinating centre to strengthen the collective efforts among law enforcement agencies so as to prevent, detect, investigate and prosecute COVID-related corruption.


  • This centre brings together nine state institutions: the Financial Intelligence Centre (FIC), the Independent Police Investigative Directorate (IPID), the National Prosecuting Authority (NPA), the Hawks, Crime Intelligence and the SAPS Detective Service, the South African Revenue Service (SARS), the Special Investigating Unit (SIU) and the State Security Agency. The SIU has been empowered to investigate any unlawful or improper conduct in the procurement of any goods, works and services during or related to the national state of disaster in any state institution. This empowers the SIU to probe any allegations relating to the misuse of COVID-19 funds across all spheres of the state, and to refer evidence found of criminal offences for prosecution. The SIU is also empowered to institute civil proceedings for the recovery of any damages or losses incurred by the state.

2. TAX

2.1 Measures

Tax measures put in place to combat the pandemic

Link: Government has implemented interventions to assist with job retention and businesses that may be experiencing significant distress, such as:

  • The introduction of a tax subsidy to employers

  • The acceleration of payment of employment tax incentive reimbursements by South African Revenue Service (SARS) - this is to be done monthly as opposed to bi-annually to allow for compliant employers to assist their employees

  • Compliant businesses being permitted to delay 20% of their employees' tax liabilities over a period of time

[conditions apply]

The above measures will be given legal effect in terms of two bills (the Disaster Management Tax Relief Bill and the Disaster Management Tax Relief Administration Bill) to be tabled when Parliament re-convenes later this year for retrospective enactment. These drafts and their explanations have been published for public comment on the SARS website.

3. SUPPORT MEASURES

3.1 Relief / Assistance

Relief Schemes

Link: Debt relief finance schemes have been put in place for small and medium businesses that have been directly or indirectly and negatively affected by the pandemic. Various qualifying criteria have been put in place for these businesses.

Link: Business growth/resilience facilities have been put in place for small, medium and micro businesses geared to take advantage of supply opportunitues resulting from the pandemic or shortage of goods in the local market.

Link: UIF relief schemes have been put in place for employers who are uable to pay employees' salaries.

The Solidarity Fund

This fund focuses efforts on combatting the spread of the corona virus, assists with tracking the spread, assists with caring for those who are ill and supports those whose lives are

The Fund will focus efforts to combat the spread of the virus, help us to track the spread, care for those who are ill and support those whose lives are disrupted by the pandemic. The fund accepts cash and non-cash donations.

Social Grants

Link: Various guidelines have been put in place for the continued payment of social grants.

3.2 Specific Sectors

Tourism

  • The local tourism industry had been reopened only for use by business persons attending business meetings in different provinces and metropolitan areas. Intra-provincial travel for leisure purposes has now been allowed. Inter-provincial travel for leisure purposes is still prohibited.

  • There are, however, various venues that are accommodating remaining and confined tourists who have been unable to return to their home countries and persons who are in quarantine or isolation.

  • Accredited and licensed accommodation venues may re-open for business, subject to adherence to protocols and measures being put in place. This, however, specifically excludes home-sharing and air b’n’b businesses.

  • A tourism relief fund has been set up to assists eligible categories to apply for assistance:

    • certain accommodation establishments

    • certain hospitality related services

    • certain travel and related services

For more information: SA Tourism and for the latest protocols pertaining to this industry, click here: Link

4. TENANCY AND LEASE

4.1 Legal Basis

Residential

Inasmuch as the regulations have prohibited the eviction of tenants, under lockdown risk alert level 3 the courts have been granted discretionary powers as to whether to confirm evictions of residents or not. Each case is decided on its own merits and such eviction must be found to be just and equitable.

Business

Tenants and landlords are encouraged to resolve disputes amongst themselves. Where litigation is instituted, this is decided by the relevant court based on the merits of the case, and any eviction must be just and equitable.

5. LEGAL PROCEEDINGS

5.1 The Courts

Litigation

  • The North Gauteng High Court declared risk alert level 3 and 4 regulations unconstitutional and invalid on 1 June 2020. This court order was suspended for a period of 14 days as from 02 June 2020, within which time government had been afforded an opportunity to rectify the infringing regulations. The Minister of Corporate Governance and Traditional Affairs (COGTA) filed an application for leave to appeal the order, which leave was granted by the North Gauteng High Court, for the Minister to appeal to the Supreme Court of Appeal “…against the declaration of invalidity of those regulations promulgated in terms of section 27(2) of the Disaster Management Act 57 of 2002 which have not been expressly identified in the judgement of … 2 June 2020.” Leave to appeal the remainder of he judgement and orders was refused; this includes the declaration of invalidity of the regulations in the judgement that were specifically mentioned. The Court granted the Minister of COGTA 10 days within which to amend those regulations specifically mentioned.

  • A state of disaster may be declared for a maximum period of 90 days. Thereafter, extensions may be done on a month-to-month basis as required. Government has determined that it will be extending the state of disaster until 15 August 2020.

  • The continued ban on the sale and purchase of cigarettes and tobacco products was litigated in the High Court. The application brought by the Fair-Trade Independent Tobacco Association (FITA) against the President of the RSA and the Minister of Corporate Governance and Traditional Affairs (COGTA) was dismissed with costs in a judgement dated 26 June 2020. The court determined that a substance that may be addictive does not merit it being declared essential.


  • British American Tobacco Company has also launched litigation proceedings int he Western Cape High Court in relation to the cigarette ban.

  • The Democratic Alliance political party applied for direct access to the Constitutional Court in an attempt to declare Disaster Management Act as unconstitutional. This application was dismissed, with the Constitutional Court concluding that it would not be in the interest of justice for the application to proceed at this stage.


Access to courts

At present access to courts, and specific matters, may have a few limitations. Court operational practices are in place according to specific directions as outlined by the Minister of Justice and Constitutional Development [ Link ] to be read with directives put in place by the Judge President of a specific division and Chief Justice.

The use of virtual court proceedings has been implemented where possible.

6. MISCELLANEOUS

6.1 Sport

Professional contact sport is allowed for training purposes, however training facilities need to be modified and restricted used of facilities is to be put in place to enable non-contact training. Furthermore, non-contact sport has been allowed to commence including, but not limited to, tennis, golf, cricket.