Member Article

Following the issuing of what has colloquially been called the “Lockdown Regulations” to reduce the impact of the coronavirus (COVID-19) in South Africa, there has been a hasty scramble for essential services to comply with the provisions of the Regulations and to register on the Essential Services Portal.

In the meantime, law enforcement has been “cracking down” on non-essential businesses operating under the guise of being “essential” and has been stopping employees in roadblocks in order to ascertain whether they are, in fact, essential. Given that government has given enterprises the power to engage in what is, to a large extent, a self-determinative process in registering as an essential service, there is scope for companies to abuse this latitude.

But what if your company actually is an essential service? How can essential service employers be prepared for this so as to ensure business continuity in this tumultuous time?

How do employers know if they are “involved in the manufacturing, supply or provision of an essential good or service” as envisaged by the Lockdown Regulations?

The Lockdown Regulations provide that all businesses must cease operations during the lockdown, except for those that are involved in the manufacturing, supply or provision of an essential good or service. On the Biz Portal, it also states that such businesses must use “absolute minimum staff necessary to operate safely.”

If an employer is uncertain as to whether it provides, manufactures or supplies essential goods or services, what can it do?

If a business is unsure whether it falls within this ambit, it should contact the Department of Trade, Industry and Competition (“DTIC”) on [email protected] asking for clarity before applying on the portal.

Is the definition of an essential service broad enough to include businesses that support essential services?

Yes. An “essential service” is defined to include the services as defined in section 213 of the Labour Relations Act, 1995, and designated in terms of section 71(8) of the Labour Relations Act, 1995, as well as services listed in paragraph B of annexure B of the Lockdown Regulations. The wording of the Lockdown Regulations is likely to be broad enough to include the services of those companies who support essential services – the Regulations use the word “involved” in the provision of an essential service.

What is an essential good?

“Essential goods” are those referred to in paragraph A of Annexure B of the Regulations. The categories of essential goods include food; cleaning and hygiene products; medical; fuel; coal and gas; and basic goods, including airtime and electricity.

If an employer is “involved” in the provision of essential services, what does it need to do?

1. Register on the Essential Service Portal (http://www.bizportal.gov.za/) and obtain the confirmation of registration certificate. Businesses need to apply to for a certificate in order to trade. Supplying incorrect information is a criminal offense and will lead to prosecution.
2. Determine which employees are essential to providing the service.
3. Issue essential employees with a permit using Form 1 contained in Annexure C of the Lockdown Regulations.
   
   

The portal has expanded the “essential service” categories from when it initially went live on 26 March 2020, what happens if an essential service chose the best category at the time but now there is a better one on the portal?

Such enterprises should contact the DTIC on [email protected] as soon as possible explaining the situation and requesting advice going forward. Enterprises may also call the DTIC on 080000 6453 or +27 12394 5560.

It is then for the DTIC to decide whether to allow such an enterprise to re-apply as an essential service in a different category.

What happens to the permit in the meantime? Is it invalid?

Until the DTIC has made an election as to what ought to happen, the certificate issued on the CIPC and employees’ permits issued pursuant thereto remain valid and enforceable if the business is a legitimate essential service. Employees should be briefed on the above and given a pack comprising:

• The above Form 1 employee permit required by the Lockdown Regulations;
• A copy of the certificate;
• A motivational letter from the employer on its letterhead providing further detail on the employee’s involvement in the provision of an essential service;
• If the business is an essential service by virtue of it providing support to primary essential services, any letters obtained from relevant customers confirming the services required from the business during the lockdown period. Identifying the ultimate customer would be beneficial where this is an identifiable essential service (ie, Eskom);
• The contact details of any relevant persons, including any designated business unit contact, customer contact and legal representative who can assist with clarifying the essential nature of the employee’s services.
  
  

What must a business do if they are required to pay for registering as an essential service on the portal?

This is a free service. If a business is being asked to pay, it should reportthis unethical conduct using the CIPC toll-free number:0800 008885.

What should happen if the law enforcement stops employees and won't let them travel to their essential job?

Law enforcement is not allowed to prevent an essential service employee from traveling to his or her essential job if he or she is in the possession of an identity document, the 11B(3) Form, the permit and the letter from his or her company.

Notwithstanding the legal position, employees may encounter issues with police officers and/or soldiers who are not well versed in the applicable legal rules. To cater for this, it is recommended that an internal or external legal representative is put on standby and that her or his contact details are provided to employees. This will allow employees to contact the legal representative if they encounter issues, and the legal representative can engage with the police officers/soldiers telephonically to endeavour to resolve any impasse that is based on a misunderstanding of the legal rules.

If the legal representative is not able to resolve the situation, the employee should adopt a conservative approach and not proceed with the trip. The employer should be advised of the situation and appropriate steps planned based on further legal advice (which may include reporting the situation at a local police station).

What should an employee do if they are stopped and asked for a bribe?

The current situation creates significant scope for potential abuse by police officers and/or soldiers, who may seek to solicit bribes from employees (even if employees are acting in compliance with the applicable legal rules and have all the necessary paperwork with them). As a first step, the above advice in respect of having a legal representative on standby is applicable. If possible, the employee should call the legal representative who should then try to defuse the situation. However, if the police officers or soldiers threaten the employee’s safety, the employee may need to make a low-value payment as a last resort under what is commonly referred to as the “life and limb” exception in many anti-bribery and corruption policies. Employees should be properly briefed on this and they will need to exercise an appropriate degree of discretion. In this regard, they cannot make such payments to avoid an inconvenience, or to get out of a situation where they do not have the correct paperwork with them. There must be a legitimate risk to their safety. Furthermore, if such a payment is made, the employee should report it to the employer as soon as reasonably practicable, so that the employer can take appropriate steps to deal with and report the situation.

Lauren Salt Executive Employment [email protected] +27 84 509 6494

Edward James Executive Forensics [email protected] 7789 cell: +27 82 562 9681

Jessie Moore Candidate Attorney Employment [email protected] +27 71 125 6135

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.