On 15 March 2020, the President of South Africa, in a national address, announced the declaration of the Covid-19 (also known as the Coronavirus) pandemic as a "national disaster". Since then, many significant consequential announcements have been made, relating to restrictions on movement, business activity, travel and other matters, all in the interests of preventing an escalation of the national disaster and alleviating, containing and minimising the effects of the national disaster.
The legislation that permits the declaration of a national disaster and the majority of the consequential actions that have followed, is the Disaster Management Act, 2002. The first step in the process is for the head of the National Disaster Management Centre to classify the Coronavirus pandemic as a national disaster. Immediately thereafter, the Minister of Co-operative Governance and Traditional Affairs, Ms Nkosazana Dlamini-Zuma, declared the national disaster in terms of section 27 of the Disaster Management Act.
A national disaster must be distinguished from a state of emergency, the legal framework for which is set out in the Constitution. A state of emergency may only be declared in terms of an Act of Parliament; in other words, Parliament would have to pass legislation to declare a state of emergency and give effect to any consequential restrictions it considers necessary.
Because of the drastic impact of the consequential actions announced by the president to contain the Coronavirus national disaster, on human rights, working conditions, civic, religious and cultural life, and the economy, those actions must be grounded in one or more “laws of general application”, and must be reasonable and justifiable in a democratic society, to be legally valid and enforceable having regard to the Constitution.
Since the declaration of a “national disaster” was made, two sets of general regulations (and several others which are sector-specific) have been issued by the minister in terms of the Disaster Management Act, to regulate the consequences of this declaration. In addition to authorising the minister to make regulations, the Disaster Management Act permits the minister to issue ‘”directions” and to authorise the issue of directions by other persons.
The initial set of regulations issued on 18 March 2020 made provision for the first wave of Coronavirus restrictions, including a prohibition on gatherings of more than 100 persons, the closing of schools, limitations on the sale, dispensing and transportation of liquor, and a prohibition on a person who has tested positive for the Coronavirus or a person who has been in contact with a person who has tested positive refusing to be submitted for medical examination, admission to a health facility or quarantine or isolation, or submission to treatment. The initial regulations also allowed for the release of State resources to fight the pandemic, emergency procurement to be undertaken and for specified Cabinet members to be able to issue directions within their mandates. The regulations also criminalised non-compliance with some of the restrictions and prohibitions imposed by the regulations.
Further regulations were issued on 25 March 2020 to give effect to the “lockdown” announced earlier in the week, and which commences on Friday 27 March 2020. These regulations introduce a new chapter to deal with the impacts of the lockdown, which in simple terms, confines every person to their place of residence unless strictly for the purpose of performing an essential service, obtaining essential goods or services, collecting social grants or seeking emergency, life-saving or chronic medical attention.
The regulations impose other significant restrictions on economic and other activity. Businesses and other entities must cease operations during the lockdown, unless they are involved in the manufacturing, supply or provision of essential goods or services. The borders of South Africa are closed, except for transportation of fuel, and essential goods. Attendance at a funeral is limited to 50 people. All commuter transport services other than certain vehicles required for essential services purposes, are prohibited from operating.
The current area of greatest uncertainty about the impact of the lockdown regulations is the categorisation of essential goods and services, which are listed in Annexure B to the regulations. Essential goods are in five groups – food, cleaning and hygiene products, medical, fuel and basic goods (such as airtime and electricity). There is a list of 28 categories of services which are deemed essential. Because of the lack of detail and certainty regarding essential goods and services, we anticipate that there will be supplementary regulations or other instruments issued to clarify which businesses may remain open during the lockdown and which must close.
There is also uncertainty about whether a business that provides essential goods or services needs a permit to do so. The Minister of Trade and Industry, Mr Ebrahim Patel announced on 25 March 2020 that all businesses that will be allowed to provide essential services are required to seek approval from the Department of Trade, Industry and Competition for them to trade during the period of the lockdown, in terms of the lockdown regulations. However, the regulations themselves do not refer to such an approval.
Numerous additional regulatory instruments to give effect to the lockdown and to regulate its consequences have been and will continue to be issued from day to day as South Africa navigates its way through and ultimately beyond the Coronavirus pandemic. These instruments are issued not only in terms of the Disaster Management Act but under other sectoral legislation, for example in the areas of competition, transportation, labour, consumer protection, medicines control and others. We will issue updates and sector-specific bulletins as and when appropriate.
As much as the Coronavirus pandemic is keeping us all physically separated, we need to pull together and try to adhere to the letter and spirit of the national disaster declaration and all that follows therefrom, to overcome the effects of the virus in our country.
For more information, please contact Pippa Reyburn
Written by Pippa Reyburn, Corporate Commercial, Director, ENSafrica