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June 3, 2020

LOCKDOWN REGULATIONS DECLARED INVALID – IMPLICATIONS FOR BUSINESSES

On 02 June 2020, the High Court in Pretoria declared the regulations (the “Regulations”) promulgated by the Minister of Co-operation and Traditional Affairs (the “Minister”) in terms of the Disaster Management Act, 2002 (the “Act”) unconstitutional and invalid. The Court suspended the operation of this order for a period of 14 business days (or a longer period with the Court’s permission) to allow the Minister time to consult (with other ministers) and to review, amend and republish the Regulations.

While the decision of the Court in the Liberty Fighters Network matter is likely to be studied, debated and perhaps appealed in due course, it is important to note that:

  • the portions of the Regulations applicable to Alert Level 3 will continue to apply in South Africa until at least 23 June 2020;
  • the Court specifically excluded the application of the order to tobacco and related products;
  • the Court found that the declaration of the national state of disaster in terms of the Act in response to the Covid-19 pandemic to be rational;
  • the Regulations were declared invalid on the basis that, in many instances, they were not rationally connected to the objective of slowing the rate of infection or limiting the spread of Covid-19 in South Africa.

Hundreds of thousands of ordinary South Africa citizens now have renewed hope of being able to return to work, re-open their businesses and earn a living in the (hopefully) not too distant future. Practically speaking, and in very general terms, however, it is likely that large portions of the Regulations will be re-introduced by the Minister in the manner directed by the Court, namely that the Regulations must be imposed in a manner which limits the infringement of the constitutional rights of citizens, and, that any limitation of these rights must be justifiable on the basis that it is rationally connected to the objective of slowing the rate of infection or limiting the spread of Covid-19 in South Africa.

Additionally, and perhaps more importantly for businesses which will be able to re-open, the directive of the Minister of Employment and Labour in respect of occupational, health and safety measures in workplaces published on 29 April 2020 (the “Workplace Regulations”) will remain in force. The Workplace Regulations place numerous obligations on employers, including requirements to develop a workplace plan, put health, safety and social distancing measures in place, conduct symptom screening, provide sanitizers and cloth masks to employees, maintain a list of vulnerable employees, appoint a compliance officer and provide certain reports. The Workplace Regulations also make provision for the specific measures which must be implemented by smaller businesses (less than 10 employees) and large businesses (more than 500 employees).