On 15 March 2020, Dr Nkosazana Dlamini Zuma, as Minister of Cooperative Governance and Traditional Affairs, declared a national state of disaster, citing special circumstances warranting such declaration in terms of Section 27(1) of the Act. Furthermore, Dr Mmaphaka Tau, in his capacity as the Head of the National Disaster Management Centre, classifying the COVID-19 pandemic as a national disaster, in other words, a disaster affecting all of the provinces, in terms of section 23(1)(b) of the Disaster Management Act 57 of 2002 (“the Act”).

The Act has only been invoked, on a national scale, once since it came into effect on 1 July 2004. The previous occasion for its use was the national water crisis. The water crisis however, pales in comparison to the current COVID-19 crisis, certainly in terms of its mortality rate and devastating effect on our economy.

The Act is the principal legal instrument that governs disaster management in South Africa. As per the Long title of the Act, the stated purpose of the Act is:

To provide for:

  • an integrated and coordinated disaster management policy that focuses on preventing or reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness, rapid and effective response to disasters and postdisaster recovery and rehabilitation
  • the establishment and functioning of national, provincial and municipal disaster management centres
  • disaster management volunteers and
  • matters incidental thereto.”

 

Aside from its use in reaction to the various droughts that have impacted South Africa, this legislation remains relatively untested. The Act and the framework set out in GN 654 of 29 April 2005 are just that; tools or instruments of policy framework for disaster risk management. On 18 March 2020, Minister Dlamini Zuma, as the Minister responsible for administering the Act and designated by the President for this purpose, published regulations giving effect and substance to the declaration of the disaster.

We’ve already seen further directives issued by the Minister of Transport; we can expect more such directions in the coming weeks and months

We can now have a closer look at how the declaration will affect us (for a look at how the crisis and regulations effect our business and trade see our article here we’ve chosen to focus on how individuals and businesses are affected; the regulations with regard to government’s emergency funding, procurement procedures etc. are not addressed in this article):

Release of resources – Regulation 2

The army has been deployed – the Department of Defence has been charged with the release and mobilisation of available resources including supplies, equipment, ships, aircraft platforms, vehicles and facilities and to ensure the delivery of essential services. (Please note – essential services is not specifically defined, it’s not yet clear whether ‘essential services’ is a reference to those stipulated in terms of section 71 Labour Relations Act 66 of 1995).

National, provincial and local government institutions are required to make resources available to implement these regulations and directions.

Donor funding may be received, must be paid into the Reconstruction and Development Fund and must be used strictly for the purpose of implementing the regulations and directions.

Prevention and prohibition of gatherings – Regulation 3

‘Gatherings’ are now prohibited. Whereas this prohibition was announced by President Ramaphosa on 15 March 2020, we’ve been waiting to see what that term means. The regulations now define a ‘gathering’ as “any assembly, concourse or procession of more than 100 persons, wholly or partially in open air or in a building or premises”

Unfortunately, this definition is not comprehensive and somewhat problematic – does this mean that any premises with capacity for more than 100 persons may not be occupied at once? What then do we do with blocks of flats or large office blocks? We will need to see how the regulations are enforced or wait to see if there is any case law generated on the subject to clarify what exactly is meant by a gathering.

Applying the laws of statutory interpretation, and considering a purposive approach, reference should be had to the words “In order to contain the spread of COVID-19”. In other words, the interpretation of gathering must be considered in light of the purpose of the prohibition, namely, to prevent and contain the spread of the virus. It is conceivable that, where it would not be possible for the virus to spread, and thus the purpose of the regulation is achieved, that gatherings of more than 100 persons may be permitted.

The regulations also prohibit the gathering of more than 50 persons at premises where liquor is sold and consumed. This would presumably apply only to on-consumption establishments – bars, taverns, restaurants etc.

Enforcement officers must order the gathering to disperse and, if the persons refuse to do so, may take appropriate action, including arrest and detention.

In an effort to enforce the disease prevention strategy of social distancing, the government is taking the prohibition on gatherings very seriously, furthermore, any person who:

“(a) convenes a gathering;

(b) permits more than 50 persons at premises where liquor is sold and consumed; or

(c) hinders, interferes with, or obstructs an enforcement officer in the exercise of his or

her powers, or the performance of his or her duties in terms of these Regulations,”

may be guilty of an offence and liable on conviction to a fine, imprisonment not exceeding six months or to both.

Refusal of medical examination, prophylaxis, treatment, isolation and quarantine – Regulation 4

No person who has been confirmed as having COVID-19, clinically or by a laboratory, who is suspected of having COVID-19 or who has been in contact with a person who is a carrier of COVID-19 may refuse consent to an enforcement officer for:

  • Medical examination and the taking of body samples
  • Admission to a health establishment or a quarantine or isolations site; or
  • Mandatory treatment, isolation or quarantine

The regulations define isolation as being:

separating a sick individual with a contagious disease from healthy individuals without that contagious disease in such a manner as to prevent the spread of infection or contamination;”.

The regulations define quarantine as being:

separating asymptomatic individuals potentially exposed to a disease from non-exposed individuals in such a manner as to prevent the possible spread of infection or contamination;

 

These terms are also somewhat ambiguous, and we will need to see how the regulations are enforced in time.

 

Failure to comply with the instruction of the enforcement officer will result in the person being placed in quarantine for a period of 48 hours, pending a warrant being issued by a magistrate for the medical examination sought by the enforcement officer.

 

Warrants issued in terms of the regulations remain in force until they are executed, cancelled by the person who issued it (or a person with like authority), the purpose of the issuing of the warrant has lapsed or 90- days after it is issued.

 

No person is entitled to compensation for loss or damage arising out of the bona fide conduct of enforcement officials under these regulations. In other words, you will not have a civil claim against an enforcement officer is he / she takes the steps outlined above.

 

Closure of schools and partial care facilities – Regulation 6

Schools and partial care facilities must be closed from 18 March 2020 to 15 April 2020. This period may be extended by the Minister.

Suspension of visits – Regulation 7

All visits by members of the public to correctional centres, holding cells, detention facilities, Child, Youth Care Centres, shelters, One Stop and Treatment Centres are suspended for 30 days. This period may be extended by the Minister.

Limitation on the sale, dispensing or transportation of liquor – Regulation 8

All on-consumption liquor premises, taverns, restaurants and clubs, must either close or accommodate no more than 50 persons, provided that adequate space (not more than 1 person per square meter of floor space) is provided and that hygiene and exposure limitation directions are adhered to. Accommodation providers which sell liquor must implement measures to stop the spread of COVID-19 and adhere to the same space, hygiene and exposure limitation regulations.

No special or event liquor licenses may be considered during the national disaster period.

All premises selling liquor, on and off-consumption, must be closed:

  • from 18:00 to 09:00 Monday to Saturday
  • and from 13:00 on Sundays and Public Holidays

Off-consumption premises must be closed from 18:00 to 09:00

Authority to issue directions – Regulation 10

The Minister of Health, Dr Zweli Mkhize, has been given wide ranging powers to issue directions to address, prevent and combat the spread of the COVID-19 virus.

The Ministers of Justice and Correctional Services, Basic and Higher Education, Police, Social Development, Trade and Industry, Transport and other Ministers may “issue directions to address, prevent and combat the spread of COVID-19”.

The Minister of Trade and Industry is specifically empowered to:

(a) issue directions to—

(i) protect consumers from excessive, unfair, unreasonable or unjust pricing of goods and services during the national state of disaster; and

(ii) maintain security and availability of the supply of goods and services during the national state of disaster;

 

In the early days of the COVID-19 crisis, we’ve seen demand for items like surgical masks, protective gloves, alcohol-based sanitisers and even toilet paper skyrocket. The exceptional demand and constrained supply has meant prices for these items have rapidly increased. The powers given to the Minister of Trade and Industry could prove vital in protecting consumers and ensuring an uninterrupted supply chain of goods and services is maintained.

Offences and penalties – Regulation 11

In a further indication of the seriousness with which the government views the crisis, various COVID-19 offences have been introduced into our law.

Regulation 11(4) states that “Any person who intentionally misrepresents that he, she or any other person is infected with COVID-19 is guilty of an offence…”.

Regulation 11(5) states that “Any person who publishes any statement, through any medium, including social media, with the intention to deceive any other person about—

(a) COVID-19;

(b) COVID-19 infection status of any person; or

(c) any measure taken by the Government to address COVID-19,

commits and offence…”

If found guilty, the sentence for such offences may be a fine or imprisonment for a period not exceeding six months, or both.

Finally, Regulation 11(6) makes it an offence to intentionally expose another person to COVID-19 and such offence may be prosecuted as assault, attempted murder or murder.

Duration of the regulations in force

Unless directed otherwise, these regulations will remain in place for the duration of the declared national disaster. The disaster that was declared on 15 March 2020 will lapse after three months, unless terminated earlier or extended by the Minister, as per section 27(5) of the Act.

The regulations can be accessed at here.

In order to stay up to date with the regulations and directions as they are published, please see the Government Printing Works published Gazettes.