Member Article

On 16 April 2020, the Minister of Cooperative Governance and Traditional Affairs issued a notice which amended several material aspects of the lockdown regulations issued in terms of section 27(2) of the Disaster Management Act, 2002.

In hermedia briefingon the amendments, Minister Dlamini-Zuma highlighted that they are intended to “lay the foundation for the risk-adjusted measures the President referred to that can enable a phased recovery of the economy, allowing the return to operation of certain sectors… under strictly controlled conditions.” With this in mind, we discuss a few of the key amendments, with a particular focus on those likely to implicate businesses and employers.

Lockdown extension

The most significant amendment for South Africans generally is the extension of the lockdown period to 23h59 on 30 April 2020 and the application of the relevant “lockdown” and other regulations to this additional period, in line with President Ramaphosa’s prior announcement to this effect.

Transportation of liquor

The amendment specifies that “the transportation of liquor is prohibited, expect where alcohol is required for industries producing hand sanitizers, disinfectants, soap, alcohol for industrial use and household cleaning products.” This not only clarifies the bounds of the nationwide alcohol prohibition but also enables businesses that produce the specified essential goods to transport alcohol in fulfilment of their essential service.

Transportation of essential goods

The amendment also permits the transportation of essential goods from warehousing sites to essential service providers. In this respect, cargo may also be moved from ports of entry to warehousing sites where cargo handling and clearing is conducted. As per the above, an exception to this is liquor transportation. Cargo may also be transported to ports of entry for export purposes. It is also noteworthy that export of cargo to decongest the ports is specifically provided for in the amendment.

Hardware and vehicle component stores

Stores that sell vehicle components and hardware products may open. However, the amendment requires them to maintain a register of persons buying essential goods and to keep a record of a signed declaration. This signed declaration must correspond substantially with the new form introduced as Annexure C to the regulations where the buyer of the goods is required to attest that the goods are essential goods, as defined.

Energy and petroleum products supply

To ensure the continuous supply of energy and petroleum products, a new chapter has been inserted into the regulations so that:

• collieries that supply Eskom operate at full capacity; and
• refineries operate at full capacity to avoid fuel shortages.

Such operations include refineries, smelters, plants and furnaces.

Mining operations

In the light of above, it is important to note that in terms of the amendments, mining operations may be conducted at a 50% capacity during the lockdown period, and thereafter at increasing capacity. The cabinet member responsible for mineral resources and energy will determine this. However, there are also conditions that apply to starting and increasing mining operations. These include:

• A rigorous screening and testing programme must be implemented as employees return to work;
• The mining industry must provide quarantine facilities for employees who have tested positive for the Coronavirus (COVID-19);
• Data collected during the screening and testing programme must be submitted to the relevant authority;
• Mining companies must make arrangements to transport their South African employees from their homes to their respective areas of operations;
• Workers from Southern African Development Community countries will be recalled at the end of lockdown in their respective countries.

The monitoring and impact assessment of seismicity through the Council for Geoscience must also be intensified immediately according to the amendments. While mining is considered an essential service, it must therefore be done in line with these reduced operation rules and within the specified conditions.

Essential goods and services amendments

The amendment has also added and amended the scope of certain essential goods and services. The following are now regarded as essential services:

1. Hardware, components and supplies may be sold as required by qualified tradespersons to provide essential repairs at residential homes and essential service providers for any project related to the provision of water, electricity or other essential services;
2. Components for vehicles undergoing emergency repairs where such vehicle is used by a person engaged in essential services work;
3. Gold, gold refinery, coal and mining subject to the aforementioned reduced operation rules;
4. Grocery stores and wholesale produce markets, spaza shops, informal fruit and vegetable sellers and langanas operating in the Western Cape and Northern Cape may trade with the municipal authority’s written permission;
5. Information and communication technology services rendered to essential service providers;
6. Trades necessary for the rendering of emergency repair work, including plumbers, electricians, locksmiths, glaziers, roof repair work and emergency automobile repairs for persons rendering essential services and for permitted public transport vehicles;
7. Call centres necessary to provide health, safety, social support, government and financial services, debt restructuring for “consumers of retailers”, and access to short-term insurance policies as a result of reduced income or loss of income;
8. Commissioners of, and services rendered by, certain Chapter 9 institutions.

It is also significant that the amendment of Annexure D to the regulations clarifies that hotels, lodges and guest houses can operate to the extent that they are required to provide accommodation for any remaining tourists who confined to them.

Where to from here for essential goods and service providers?

Given the expanded list of essential goods and services, it is vital that those who fall within its parameters comply with the requirements for their lawful operation during the lockdown period.

In this regard, the Department of Trade and Industry (“DTI”) released astatementon 16April2020, stating that companies that are registered in terms of the Companies Act, 2008 and through the Companies and Intellectual Property Commission’s (“CIPC”) BizPortal to perform essential services during the lockdown period will need to have a new certificate from the BizPortal website for the extended lockdown period. This extended lockdown period begins on 17April2020.

These new certificates will be emailed to the registered essential service providers by the weekend and will, according to the DTI, be available to be displayed from the start of business on Monday, 20April2020. The certificates issued previously will no longer be valid and must be disposed of.

The government has indicated that amendments such as these will continue, most likely, on a weekly basis to support the “incremental” lifting of the lockdown. The importance of staying informed, and acting within the bounds of the law, especially for employers, cannot be overstated.

Lauren SaltExecutive Employment[email protected]+27 84 509 6494

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