There is no express exception made in the lockdown regulations published on 25 March 2020 for businesses that can operate through telecommunications from the residences of staff members, without physical contact between people, the movement of people or any gatherings of people on account of the operation of such business (“remote businesses”).

One would have to interpret the regulation 11B(1)(b) prohibition that “all businesses and other entities shall cease operations during the lockdown” purposively for such remote business to fall outside of the prohibition, if they are not expressly exempted on the basis that they are involved in the manufacturing, supply or provision of essential goods or services. It does not pose any health risk for such businesses to continue to operate since they do not undermine the lockdown’s immediate purpose, which is to confine people to their homes. It is therefore justified to conclude that such businesses may continue to operate.

Allowing remote businesses to operate would mitigate the adverse economic effect of the current disaster, which must be an objective of disaster management. Section 27 of the Disaster Management Act, 2002, which is the provision in terms of which the lockdown regulations were made, provides that the regulations made must be necessary for:

• assisting and protecting the public;
• providing relief to the public;
• protecting property;
• preventing or combating disruption; or
• dealing with the destructive and other effects of the disaster.

None of these objectives would be furthered by prohibiting the operation of remote businesses.

Written by Johan Loubser, Banking and Finance, Director, ENSafrica