Written by Tebogo Tsoane – Candidate Attorney and

Sereeka Ananmalay – Associate

INTRODUCTION

The unprecedented outbreak of COVID-19 has had disastrous global implications and has led to significant socio-economic disruptions. South African businesses are fighting for survival as the arrival of COVID-19 in South Africa has led to President Cyril Ramaphosa (“the President”) declaring a national state of disaster and announcing a 21 day national lockdown, with effect from midnight 26 March 2020 until 16 April 2020, in an attempt to minimise the spread of COVID-19 throughout the Republic.

The President, in an attempt to “flatten the curve”, has introduced several measures which aim to minimise the movement and interaction of people within the Republic. These measures include strict limitations on business operations, as the Regulations published in Government Notice No. 318 of 18 March 2020 (“the Regulations”) and the amendments published in Government Notice No. 43148 of 25 March 2020 require that only businesses which provide essential goods and services may continue to open and operate without disruption during the lockdown period.

The objective of this article is to summarise the law regarding the provision of goods and services during the lockdown period, and to discuss the impact of the regulations on employees who provide essential goods and services.

ESSENTIAL GOODS AND SERVICES DURING THE LOCKDOWN

While a substantial segment of the population is in lockdown, the operations of numerous industries have been severely affected as businesses are now compelled to serve their clients remotely, while some have been forced to cease operations entirely. However, those businesses that provide essential goods and services, are not subject to these restrictions.

Annexure B of the Regulations establishes the categorisation of essential goods and services. Item A of Annexure B defines essential goods, for purposes of the lockdown, as follows:[1]

1. Food…;

2. Cleaning and Hygiene Products…;

3. Medical…;

4 Fuel, including coal and gas;

5. Basic goods, including airtime and electricity.

In addition, Item B of Annexure B of the Regulations sets out the categories of services which can be defined as essential, thus falling outside the ambit of the severe restrictions which have been placed on business operations in general. Furthermore, it is useful to emphasise that the Regulations require that businesses that are deemed to be providers of the essential goods or services, are still required to obtain a permit from the Companies and Intellectual Property Commission in order to operate.

HOW THE REGULATIONS IMPACT EMPLOYEES WHO PROVIDE ESSENTIAL GOODS AND SERVICES

Workers that are deemed to be providing essential goods and services and ensuring that the rest of the country has access to basic necessities, face numerous challenges and potential health risks while at work.

Health care workers, such as doctors and nurses, are at the front line of assisting those in need of health care assistance, but also face increased risk of contracting COVID-19. Grocery store workers, for example, face a similar struggle. While it may seem that merely providing employees with personal protective gear and introducing additional safety checks and processes is sufficient, questions arise as to the safety processes adopted by contractor and/or service providers of the essential business, as well as whether requiring workers to travel to and from work increases their exposure and risk of infection. These issues need to be considered and dealt with holistically by businesses to ensure the safety and wellbeing of their employees, due regard being had to the obligations placed on employers in terms of the Occupational Health and Safety Act, 85 of 1993.

CONCLUSION

The President, in defining essential goods and services in the manner in which he has, has ensured that citizens are severely restricted in their movement and interactions, while also trying to ensure that society is supported and that the economy continues functioning as optimally as possible. This is a tight balancing act and, as such, the regulations are in a constant state of flux as government learns how best to handle this situation.

It is important, however, that appreciation and consideration be had for the essential service workers who are placing themselves at risk on a daily basis to ensure that society has the support it needs during this outbreak.

[1] Item A in Annexure B of the Regulations