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dispute resolution | 02 Jun 2020
BY Aslam Moosajee
ENSight

dispute resolution


South Africa: Alert level 3

On 1 June 2020, South Africa began operating at alert level 3 and the regulations, issued by Minister Dlamini Zuma on 28 May 2020, have taken effect. In this note, we provide an overview of various salient features of the newly issued regulations.

Hotspots

The newly issued regulations introduce the concept of a “hotspot”. Hotspots can be distinct from provincial, metropolitan or district classifications and are identified by the Minister of Health, after consultation with the member of the Executive Council responsible for health in the relevant province, by taking the following factors into accounts:

  • the number of active cases per 100 000 population;
  • the rate of increase of active cases;
  • the availability of hospital beds and related resources;
  • any other factor relevant for purposes of containment of COVID-19.

The Minister of Cooperative Governance and Traditional Affairs may, upon the recommendation of the Minister of Health, determine by a notice in the Gazette, a hotspot as identified by the Minister of Health, and any additional restrictions which may apply in relation to the hotspot.

Hotspots can operate at a different level of alert to the rest of the country, and the movement of persons in and out of hotspots can be restricted.

The Minister of Health is obliged to oversee the implementation of a plan, developed in consultation with the MEC for health in the relevant province, to contain the spread of COVID-19 in the hotspot.

All businesses can operate, with specified exclusions

Unlike under alert levels 4 and 5, where only specified industries were entitled to operate, under alert level 3, the regulations permit the operation of all industries with the following specified exclusions:

  • the sale of food and/or beverages, including alcoholic beverages, for consumption at or in the place of sale (including restaurants, retail outlets, convenience stores and informal traders);
  • short term home-sharing, letting, leasing or rental for leisure purposes;
  • domestic passenger air travel for leisure purposes, until directions with health protocols and social distancing measures are issued by the Minister of Transport;
  • passenger ships for leisure purposes;
  • conferences and events, including sporting events, with the exception of non-contact sports matches;
  • personal care services, including hairdressing, beauty treatments, make-up and nail salons and piercing and tattoo parlours, except those services identified by the relevant cabinet member, in consultation with the Minister of Health, as safe to resume;
  • tourist attractions, casinos and entertainment activities, except those identified as safe to resume by the relevant cabinet member in consultation with the Minister for Health;
  • exclusions relating to public transport services and education services as set out in directions to be issued, respectively by the Minister of Transport and Minister of Education.

Notably, the regulations provide that all those who can work at home must continue to do so.

Movement of persons

Restrictions on movement have been relaxed. The following, amongst others, are now permissible reasons to leave one’s place of residence:

  • travel to and from work and to travel to obtain goods and services;
  • exercise is permissible between the hours of 06h00 to 18h00, provided that the exercise is not done in organised groups and adheres to health protocols and social distancing measures. There is no longer a requirement that exercise must be performed within a 5km radius of one’s home;
  • attendance at a place of worship in the same or another metropolitan area or district within the same province; and
  • attendance of school or learning institutions, once such institutions are opened.

Religious gatherings and non-contact sports matches

Faith-based institutions are now permitted to operate, provided that no more than 50 people gather in such an institution, depending on the institution's size, and all health protocols and social distancing measures are adhered to as set out in the directions issued by the Minister of Cooperative Governance and Traditional Affairs. These directions impose onerous obligations on religious leaders at places of worship.

Professional non-contact sports matches can be played, provided that only players, match officials, journalist and medical and television crew may attend such matches and that the relevant directions issued by the Minister of Health are observed.

Movement between provinces and countries

Movement between provinces continues to be prohibited except in the following circumstances:

  • travel for business, provided that such business is permitted under alert level three and the relevant person is in possession of a permit issued by his or her employed which corresponds with Form 2 of annexure A to the regulations;
  • travel for the purpose of moving to a new residence or caring for an immediate family member, provided that the relevant person is in possession of an affidavit which corresponds with Form 6 of Annexure A;
  • travel by members of Parliament performing oversight responsibilities;
  • travel by students who have to commute to and from schools or institutions of higher learning during periods when those schools or institutions are permitted to operate. In order to travel, students must carry a certificate which corresponds with Form 3A of Annexure A, which is issued by the head of his or her school or institution of higher learning, or a person delegated by him or her, and which indicates that the student attends the relevant school or institution of higher learning;
  • travel in order to attend a funeral by persons specified in regulation 35;
  • transportation of mortal remains;
  • obtaining medical treatments; or
  • travel by persons who are returning to their place of residence from a quarantine or isolation facility.

In addition, movement between provinces and in and out of South Africa, is permitted in the following circumstances:

  • transportation of fuel, cargo and goods; or
  • transportation for humanitarian operations, repatriations, evacuations, medical emergencies, movement of staff of diplomatic and international organisations.

The Minister of Home Affairs is also empowered to permit entry into or exit from South Africa in the following circumstances:

  • emergency medical attention is required for a life threatening condition;
  • evacuation of a South African national or permanent resident from another country to South Africa;
  • repatriation of a foreign national to his or her country of nationality or permanent residence;
  • return of a South African national or permanent resident to his or her place of employment, study or residence, if such place is outside of South Africa; or
  • daily commute from people in neighbouring countries who attend school in South Africa.

As noted above, the regulations make provision for the Minister of Transport, after consultation with various relevant members, to issue directions permitting further relaxation on the restrictions on domestic passenger air travel for leisure purposes. It therefore appears that during alert level 3, domestic passenger air travel for leisure purposes may eventually be permitted, subject to the directions issued by the Minister of Transport.

Certain public places remain closed

Places or premises normally open to the public, where cultural, sporting entertainment, leisure, exhibitions, organisational or similar activities may take place (e.g. gyms, beaches, public parks, casinos etc.), continue to be closed to the public.

Evictions

Evictions continue to be prohibited under alert level 3. However, a competent court may grant an order of eviction in terms of the Extension of Security of Tenure Act, 1997 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998, provided that such an order is suspended until the last day of alert level 3, unless a court determines that it is not just and equitable to order such a suspension.

Alcohol and cigarettes

The sale of alcohol at any licensed premises, for off-premises consumption, or through e-commerce is permitted from Monday to Thursday, between 09h00 and 17h00.

The sale of tobacco, tobacco products, e-cigarettes and related products continues to be prohibited, except for export. A Minister in the Presidency has been quoted by the media as indicating that the sale of cigarettes will be permitted under alert level 2.

International travel

International travel continues to be prohibited, but the regulations make provision for the Minister of Home Affairs, in consultation with the Ministers of Health and of Transport, to permit certain categories of international travel to resume once it is deemed safe to do so.

Aslam Moosajee

Dispute Resolution | Executive

+27 82 461 5917

amoosajee@ensafrica.com

Joshua Davis

Dispute Resolution | Candidate Attorney

jdavis@ensafrica.com