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COVID-19 legal update banner Africa icon
Coronavirus (COVID-19)
ENSafrica.com | legal update
issue 3 | 21 Apr 2020

banking and finance

Financial services under lockdown

ENSafrica’s Banking and Finance team summarises some of the latest COVID-19 related regulatory amendments and updates pertaining to financial services. They also highlight some remaining areas of uncertainty. Here is the full article.

Can parties to derivatives transactions, who cannot perform their contractual obligations as result of the Coronavirus (COVID-19), terminate their contract?
Kelle Gagné (ENSafrica | Banking and Finance) shares her insights on this topic, particularly with reference to the 2002 ISDA Master Agreement, which is the standard contract used to govern over-the-counter derivatives transactions.

business and lifestyle

Are your affairs in order?

Due to the swift rise of COVID-19 death rates, and the fact that even prominent figures such as Prince Charles and Boris Johnson have contracted the virus, many people are being reminded of their own mortality. Aside from the health risks, the pandemic also presents a host of personal financial risks, many of which can be difficult to manage. In this regard, Deon Beachen (ENSafrica | Private Clients) poses various questions and sets out key considerations in order to guide your thinking around issues such as proper estate planning and the importance of having executed a valid and well-drafted will. You can read these here.

corporate

Closing deals during lockdown

Zeyn Bhyat and Sarah Binge (ENSafrica | Corporate Commercial) look at some of the practical challenges that arise if a transaction is scheduled to "close" during the lockdown period. They also explore possible mechanisms to overcome those challenges. Follow this link to access the full article.

dispute resolution

New guidance pertaining to litigating during lockdown

To date, the Chief Justice has issued two sets of directives that apply to all superior courts across the country. The first was issued on 17 March 2020 (ie, shortly after the declaration of the national state of disaster), and contained provisions restricting the number of people allowed in courts and implemented decontamination and social distancing protocols. The second was issued on 17 April 2020, and is to be read in conjunction with the initial directive. Separately, supplementary directives were issued regarding court operations specifically in the Pretoria and Johannesburg High Courts during the lockdown period and until the end of until the end of Term 2 of 2020 (including the first week of the July 2020 recess). These supplementary directives are in conformity with the directives of the Chief Justice. Lastly, on 21 April 2020, the Supreme Court of Appeal ("SCA") issued a proposal to members of the legal profession regarding the conduct of SCA proceedings during May 2020. Aslam Moosajee and Vishana Makan (ENSafrica | Dispute Resolution) provide more information.

employment

Cost-cutting alternatives to retrenchment

The grim impact of the initial 21-day lockdown on the South African economy has been extensively reported on, and the extension of the lockdown is likely to result in even bleaker forecasts. Although it has been announced that the South African Government is still working on a comprehensive package of economic support measures, public sentiment appears to be that these are unlikely to make a significant difference. Also, privately funded relief initiatives appear to already be completely oversubscribed. As a result, exploring creative and effective ways to contain costs must now be front of mind for employers if they are to have any chance at curtailing massive job losses and ensuring sustainability. Brian Patterson and Audrey Johnson (ENSafrica | Employment) provide an overview of the various cost containment measures that businesses could be considering as possible alternatives to retrenchment.

C19 TERS: The UIF has released four new memoranda of agreement (MOAs)
These MOAs set out the terms and conditions that must be complied with when applying for relief under the COVID-19 Temporary Relief Scheme (C19 TERS). The UIF has also issued a revised C19 TERS application procedure. Lauren Salt, Hlengiwe Mahlangu and Jessie Moore (ENSafrica | Employment) highlight the most crucial clauses in respect of MOA "A" – which is applicable to employers who want to submit claims directly to the UIF.

mine and occupational health and safety

Mining industry: A few practical considerations for the "post lockdown" era

It would be prudent for employers in the mining industry to consider whether the measures that they applied prior to and/or during lockdown (eg, temperature screening, social distancing, alternate means of alcohol-testing, restricting operations to "care and maintenance" etc) will still be adequate and reasonable post lockdown. Pieter Colyn and Warren Hendricks (ENSafrica | Mine and Occupational Health and Safety) set out some practical considerations here.

All industries other than mining industry: Are employers obliged to report and investigate incidents of occupationally-acquired COVID-19?
Willem le Roux and Tyla Foster (ENSafrica | Mine and Occupational Health and Safety) consider this question with reference to the relevant provisions of the Occupational Health and Safety Act, 1993.

natural resources and environment

MPRDA related timeframes extended

The Minister of Mineral Resources and Energy recently published COVID-19 related regulations pertaining to some of the prescribed timeframes in the Mineral and Petroleum Resources Development Act, 2002. The relevant timeframes have been extended by the number of days that the national lockdown continues. Lloyd Christie and Ntsiki Adonisi-Kgame (ENSafrica | Natural Resources and Environment) provide the details.

Emergency procurement of water supply and sanitation services
The Department of Human Settlements, Water and Sanitation published directions implementing emergency procurement of water supply and sanitation services to areas that lack water for basic hygiene purposes. More specifically, the directions establish a central operations centre, namely the National Disaster Water Command Centre (“NDWCC”), which is tasked with taking appropriate measures in this regard. In terms of the directions, irrigation boards, water user associations and catchment management agencies must supply water as and when directed to do so by the NDWCC. Furthermore, municipalities must identify appropriate public spaces for the placement of eg, water tanks, ablution blocks and public toilets, and distribute water and sanitation packs from the NDWCC. Lastly, companies with employees based in these areas should encourage those employees to utilise hygiene services provided by the NDWCC. Click here to read the full article by Lloyd Christie and James Brand (ENSafrica | Natural Resources and Environment).

tax

The draft Disaster Management Tax Relief Administration Bill, 2020 has been released for comment

This bill deals with the deferral of employees’ tax, provisional tax and interim payments, and also provides that certain time periods in relation to tax matters will effectively be "frozen" during the lockdown period. Taryn Solomon (ENSafrica | Tax) gives a high-level summary focusing on the bill’s impact on prescribed time periods in relation to tax disputes.

technology, media, data protection, IT security and business continuity

How to choose a video conferencing platform in a COVID-19 era

Many countries are now under some form of lockdown due to the COVID-19 outbreak. As a result, many organisations are now working remotely and with video conferencing platforms which enable people to conduct virtual meetings. However, there are growing privacy concerns regarding the use of these platforms. Isaivan Naidoo (ENSafrica | Technology, Media and Telecommunications) and Lucinda Botes (ENSafrica | Corporate Commercial) set out some important considerations and helpful hints to mitigate avoidable risks when procuring these technologies, since choosing the wrong service provider could result in financial, regulatory or reputational harm.

Obligations and roles of the electronic communications sector amended
On 7 April 2020, ICASA published a notice to amend the directions which were issued on 26 March 2020 pertaining to the communications sector. Wilmari Strachan (ENSafrica | Technology, Media and Telecommunications) discusses these amendments here.

Does the new COVID-19 contact tracing database pose a security risk?
The disaster management regulations now provide for the mandatory establishment of the "COVID‑19 Tracing Database" by the National Department of Health. This database will trace people who are known (or reasonably suspected) to have come into contact with any person known (or reasonably suspected) to have contracted COVID-19. Era Gunning (ENSafrica | Banking and Finance) and Rakhee Dullabh (ENSafrica | Corporate Commercial) touch on some of the potential security concerns associated with this database – follow this link to read more.

 

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