By Warrick de Wet (attorney)
Two sets of lockdown regulations have been published so far in terms of the Disaster Management Act 2002. One was issued on 25 March 2020 and the other on the 26 March 2020.
The regulations have their problems, probably due to the fact that the situation is novel and they were produced in great haste.
For instance, clause 11B(1)(b) of the 25 March regulations provides that “all businesses and other entities shall cease operations during the lockdown, save for any business or entity involved in the manufacturing, supply, or provision of an essential good or service.”
The difficulty with this particular clause is that it contains an outright prohibition against all business activities literally meaning that even those businesses operating remotely are prohibited from doing so. Clearly that is not what was intended by the President when he addressed the nation concerning the lockdown. This example serves to demonstrate that there is a difference between what the regulations literally say and what the actual intention of the regulations is.
In any event, the idea is that movement and gathering is prohibited (clause 11B(1)(a)). The reference in clause 11B(1)(b) to “businesses and other entities” ceasing operations, must be interpreted to mean that they will cease operations at their regular places of operation.
The exclusion which pervades through the regulations is that businesses and other entities may continue their operations (therefore presumably meaning continue their operations at their regular places of business) if they are “involved in the manufacturing, supply or provision of an essential good or service.”
The 26 March regulations amend clause 11B(1)(b) by permitting trade from outside of South Africa or “remotely by a person from their normal home”.
The point is that the regulations are not ideal and in some instances are broadly open to varying interpretations, depending on one’s perspective.
Essential Goods and Services
The lockdown regulations published on 25 March set out the exceptional circumstances under which goods and services may be provided during the lockdown period. These regulations were updated in the 26 March regulations.
“Essential goods” means the goods referred to in paragraph A of Annexure B to the 25 March regulations.
“Essential services” means the services as defined in Section 213 of the Labour Relations Act and designated in terms of Section 71 (8) of the Labour Relations Act and as listed in paragraph B of Annexure B to the 25 March regulations.
The list of services designated as essential are limited to certain specified services. The word “confined” is used to describe the list of services, meaning that it is a limited list. The same type of wording expressing a limitation is not used in relation to the description of essential goods but one would assume that essential goods are intended to be limited to the list subject to contextual indications to the contrary.
The individual provision of a service outside of a “business or entity” is prohibited. A business will include a sole proprietorship and a registered charity.
Social and Welfare Services
I list below certain of the essential services that could be regarded as social services. These are not necessarily linked to a government / municipal office and could be taken up by a “business or entity”:
1. medical, health (including mental health), laboratory and medical services and the National Institute for Communicable Diseases;
2. the production and sale of essential goods (with “sale” being a sticking point relative to the intended donation of aid);
3. the provision of care services and social relief of distress provided to older persons, mentally ill, persons with disabilities, the sick and children;
4. production, manufacturing, supply, logistics, transport, delivery, critical maintenance and repair in relation to the rendering of essential services including components and equipment;
5. transport services for person rendering essential services and goods and transport of patients.
Charities engaged in the provision of “essential services” may therefore continue to provide those services. However, charities that are not engaged in the defined services would be subject to the same restrictions as commercial businesses. It will be permissible for such other charities to continue in a supporting role on a “work from home” basis, but they should refrain from front-line activities.
In my view anyone with the intention of doing good in this regard should either do so as a registered volunteer, sub contractor or employee of an existing business or entity which has trading history in the field, or otherwise make a donation to such existing business or entity.
This is an easy precaution to take in order to avoid risk of falling foul of the regulations.
Registration with CIPC
Businesses and entities providing essential goods and services are required to register on the CIPC bizportal (https://www.bizportal.gov.za). In practice, entities that are not incorporated as companies have not been able to register on the Portal. This applies to sole proprietors, partnerships, Incorporated professional practices, non-profit companies (NPC) and associations not for gain.
A registered charity is a business as envisaged above, even though it cannot find room for registration with CIPC.
A statement has been issued by the DTI to the effect that businesses will not be prejudiced in any way should they find that they are not able to register with CIPC as an essential service provider due to difficulties experienced with CIPC’s bizportal.
Charities engaged in essential services will be required to issue a certificate employees or volunteers who will be engaged in front line activities. We have a template available which I am happy to provide free of charge on request. The version annexed to the regulations should not be used as it is incomplete.
Warrick de Wet
WARRICK DE WET ATTORNEYS
Email: firstname.lastname@example.org | Cell: 083 444 0920