Updated: Apr 18
Following the previous post on the position as at 01 April 2020, various Directions, Regulations and COVID-19 measures have been Gazetted; the most notable amendments, revisions and/or additions affecting our clients, being the following:
Amendment Regulations issued in terms of Section 27(2) of the Disaster Management Act 57 of 2002, published in Government Gazette No. 43199 on 02 April April 2020
1. The prohibition on movement between provinces and metropolitan and district areas has been qualified, with the following exceptions:
for essential workers who have to travel to and from work;
transportation of cargo from ports of entry to their intended destination, on prescribed sanitation conditions;
for the transportation of mortal remains; and
attendance of a funeral as provided for and on the conditions set out in the Regulations*
*The conditions applicable to the exemptions are comprehensive, each of which has its own prescribed requirements, and the full extent of which are beyond this update advisory and we advise our clients and members of the public to seek appropriate legal advice to ensure compliance with the statutory requirements applicable to these Regulations.
2. Contact tracing was introduced which is a controversial issue worldwide due to data protection requirements in various countries.
The amendment Regulations comprehensively details the Department of Health's approach and authority; as well as the limitations thereof, to develop and maintain a national database to allow the tracing of people who are known or reasonably suspected to have come into contact with anyone known or reasonably suspected to have contracted COVID-19 (COVID-19 Tracing Database). This will be implemented by amongst other things; cell phone data, procured from mobile network operators.
The Regulations stipulate that the information may only be obtained, used or disclosed by authorised persons and where necessary for the purposes of addressing, preventing or combating the spread of COVID-19. A data subject's consent is not required by virtue of the statutory duty of a person who has tested positive for COVID-19, to disclose his or her status.
The Regulations specifically confirm that nothing in the regulations entitle the Director-General of the Department of Health, or any other person, to intercept the contents of any electronic communication, and further directs that within six weeks after the end of the national state of disaster, the information in the COVID-19 Tracing Database must be de-identified
3. Notable updated essential good and services
'Medicine' is now categorised under the medical category of essential goods
'Wood' is now categorised under essential goods
'Withdrawal of cash is now categorised as provision of basic goods
'Pest control" is now categorised as an essential service
'cremation' services and 'the transport of mortal remains' is categorised as essential services
'call centres' critical for the support of newspaper, broadcasting and telecommunication infrastructure and services are categorised as an essential service
Amendment to the Directions issued in terms of Regulation 10(8) of the Regulations made under Section 27(2) of the Disaster Management Act 57 of 2002, published in Government Gazette No. 43213 on 07 April April 2020
4. The prohibition on the movement of children during the lock-down period between co-holders of of parental responsibilities and rights, or a caregiver as defined in Section 1(1) of the Chihldren's Act No. 38 of 2005, has been qualified and an exception to the said prohibition applies where arrangements are in place for a child to move from one parent to another, in terms of:
a Court order;
a parental responsibilities and rights agreement which is registered with the Family Advocate
* The aforesaid exceptions require documentary evidence of the existence of the Court order or agreement referenced above to be in the possession of the parent transporting the child concerned.
** The exception only applies if the household to which the child is to move does not hold a person known to have come in contact with or is reasonable suspected to have come into contact with, a person known to have contracted or reasonably suspected of having contracted COVID-19.
Judge President of the Gauteng Division of the High Court of South Africa issues a supplementary directive in respect of special arrangements for all litigation in the Johannesburg and Pretoria High Courts - 02 April 2020.
5. A Directive was issued in terms of section 8.4(b) of the Superior Courts Act, Act no.10 of 2013, to address the concerns from litigants and members of the profession, regarding dies non. This directive now confirms that there shall be no dies non and litigants are required to comply with their obligations prescribed under statute or by a rule of Court in respect of the service and filing of Court process and/or documents ancillary thereto.
The Directive outlines the requirements and processes for such service and filing and provides for the remedy of condonation, in respect of compliance shortcomings attributable to the national lock down.
It is imperative to note that the declaration of a National Disaster under the Disaster Management Act is not the same as a Constitutionally declared state of emergency, although both involve the Constitutional limitation of rights in different instances and to different degrees. The Constitution balances Constitutional Rights with a Constitutional Limitation of Rights.
Clients and members of the public are cautioned to seek appropriate legal advice before exercising any perceived rights under the National COVID-19 measures (Regulations and/or Directives) as the said measures provide for general offences, lockdown offences, contact tracing offences and further regulatory sanctions.
This post is not intended as legal or professional advice and has been prepared as a summary and opinion on general principles of law or other common practice and is published for general information purposes only.