With 2,415 confirmed cases and 27 deaths due to COVID-19 as of April 14, South Africa is the hardest hit African country so far. In the last few weeks, the government has taken a number of measures to contain the pandemic and mitigate the damages it has caused. In this post, I will highlight some of these measures.
National State of Disaster
On March 15, 2020, when the number of infected persons infected was 61, South Africa declared a national state of disaster under the 2002 Disaster Management Act. This was done primarily, as President Ramaphosa put it, to enable the government to “have an integrated and coordinated disaster management mechanism that will focus on preventing and reducing the outbreak of this virus.” The declaration enabled the government to issue a slew of regulations, directions, and guidelines to contain and mitigate the impact of the pandemic. During a state of disaster, the Disaster Management Act allows the government to issue regulations to restrict, inter alia, movement of persons and goods “to, from or within the disaster-stricken or threatened area, … the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area…. [or] any other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster…” (§ 27(2).) Similarly, the 2004 Disaster Management Regulations (DMR) (as amended) state that ”[a]ny Minister may issue and vary directions, as required, within his or her mandate, to address, prevent and combat the spread of COVID-19, from time to time, as may be required, including…steps that may be necessary to prevent an escalation of the national state of disaster, or to alleviate, contain and minimise the effects of the national state of disaster.” (§10(8).)
The government instituted a lockdown from March 26 through April 16. (DMR § 11.) On April 9, President Ramaphosa extended the lockdown through the end of April. During this period, every person must remain confined in his or her place of residence and is not allowed to leave “unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, pension or seeking emergency, life-saving, or chronic medical attention.” (DMR § 11B.) All gatherings, except for purposes of attending a funeral (allowed only for a maximum of 50 persons), are banned. (DMR §§ 3 & 11B.) All business must remain closed for the duration except those engaged in “manufacturing, supply, or provision of an essential good or service.” (Id.) Retail stores permitted to stay open and sell essential items are barred from selling any other goods. (Id.) Also barred is travel between provinces and metropolitan and district areas unless it is for excepted persons and circumstances. (Id.) South African borders will remain closed except designated ports of entry for the purposes of transportation of fuel, cargo, and goods. (Id.) All commuter transportation services are suspended except for buses, taxis, e-hailing services, and private vehicles necessary for performing excepted activities. (Id. § 11c.) For vehicles permitted to be on the road during the lockdown, additional restrictions apply; for instance, public transportation sedans may only carry 50% of their permitted capacity, while minibuses and midi-buses may only carry up to 70% of their maximum licensed passenger seating capacity.
On March 26, the Minister of Home Affairs issued directions prescribing temporary measures relating to entry into or exit from the country. The directions withdrew temporary residence visas issued to foreigners residing in high risk countries (Germany, Italy, Iran, South Korea, Spain, United Kingdom, USA, and France) unless such persons had arrived in South Africa on or before March 15. (§ 5.) The directions also withdrew visa exemptions allowing visa free movement for nationals of high risk countries and suspended the issuance of visas to foreigners who have visited or transited through a high risk country since February 15. (§§ 6 & 7.) Persons from high risk countries who were in South Africa prior to February 15, but are unable to depart for reasons related to the disaster, will be entitled to a visa extension. (§ 12.)
The directions also suspended all visas for foreigners for the duration of the lockdown stating that “during the period of National Lock-Down, as declared, no foreigner may be issued a visa for purposes of travel into the Republic and no person will be allowed entry into, or transit through, or departure from, the Republic.” (§ 17.)
The DMR specifically authorized the Minister of Trade and Industry to issue directions to “protect consumers from excessive, unfair, unreasonable or unjust pricing of goods and services during the national state of disaster. (Id. § 10.) On March 19, 2020, the Minister issued the Consumer and Customer Protection and National Disaster Management Regulations and Directions. These Regulations and Directions aim to prevent, among others, excessive price increases for certain essential items. They bar dominant firms, as defined in section 7 of the Competition Act, from charging excessive prices to the detriment of customers. (§ 4.) They also state that a material price increase during the period of disaster of a basic food or consumer item, emergency products or services, medical and hygiene supplies, or emergency cleaning products and services “is a relevant and critical factor for determining whether the price is excessive or unfair.” (Id.) It “indicates prima facie that the price is excessive or unfair” if such increase does not correspond to an increase in the cost of production of provision of the good or service, or increases the net mark-up on the good or service relative to the price for the same good or service in the three months preceding March 1, 2020. (Id.) According to the regulations, such practice is “unconscionable, unfair, unreasonable and unjust and a supplier is prohibited from effecting such price increase.” (§ 5.) Subject to the applicable penalties under the Act, a person or firm who contravenes these restrictions is subject to a fine not exceeding ZAR1million (about US$55,500), a fine of a maximum of 10% of a firm’s annual turnover, and custodial sentence not exceeding one year. (§ 7.)
In addition, the Regulations and Directions mandate that suppliers of goods “implement reasonable measures… to ensure the equitable distribution” of the above listed essential goods as well as items such as toilet paper, hand sanitizer, facial masks, and surgical gloves. (§ 6 and Annexure B.)
Compensation for Occupationally-Acquired COVID-19
On March 24, 2020, the Compensation Commissioner issued a notice regarding compensation of persons with occupationally-acquired COVID-19 under the Compensation for Occupational Injuries and Diseases Act (COID A). The Notice states that “[a] claim for occupationally-acquired COVID -19 shall clearly be set out as contemplated in and provided for in sections 65 and 66 of the COID A.” The notice mandates that the compensation fund pay for temporary total disablement as the result of a confirmed COVID-19 case for up to 30 days. (§ 5.) In the event of a complication, the Commissioner may review and possibly extend payment. (Id.) If a complication as a result of the disease results in death, the family of the deceased are entitled to reasonable burial expenses and widow and dependent pension. (Id.) Employers must pay employees on physician-recommended self-quarantine for the duration. (Id.)
Special Unemployment Insurance Benefit
The Ministry of Employment and Labour issued a directive to create a temporary “special benefit under the Unemployment Insurance Fund” for contributors to the fund who have lost income due to the pandemic and the national lockdown. The directive states that “[s]hould an employer as a result of the Covid-19 pandemic close its operations, or a part of its operations, for a 3 (three) months or lesser period affected employees shall qualify for a Covid19 benefit.” Although employees will be paid in terms of the “income replacement rate sliding scale (38%-60%),” the fund will pay a minimum of ZAR3,500 (about US.$195) (§ 3).
If a contributing employee is in a 14-day quarantine due to the pandemic, he or she qualifies for an illness benefit under the Unemployment Insurance Act. (§ 4.)
All COVID-19-related regulations, directions, and guidelines issued by the different organs of the South African government are available on a dedicated page in the South African government portal. Another page on the portal providing news and educational information is available. The South African National Institute for Communicable Diseases website is also useful for finding information on South Africa’s approach to combating the disease.