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1. We refer to the above as well as the regulations issued by the Minister of Cooperative Government and Traditional Affairs, on 25 March 2020 (“the lockdown regulations”), which regulations contain various amendments of and additions to the regulations issued on 18 March 2020 (“the initial regulations”). This letter also includes the amendments to the lockdown regulations issued on 26 March 2020 (“the amended regulations”). Due to the nature and content of the regulations, this letter is unfortunately fairly long and detailed. We trust, however, that it provides clear summaries and answers to the most important questions raised.
2. We wish to stress that the content hereof merely contains our interpretation of the regulations, based on the existing law, and in a manner that will be arguable in court. Where there is ambiguity, we have opted to err on the side of caution. It might, however, be that the government enforces some of the lockdown regulations in a different manner. We will have to wait and see, and, if there are any changes, we will notify you accordingly.
3. At the outset, it is important to note that the lockdown regulations are merely an amendment to the existing regulations, which means that, unless amended, the initial regulations still apply. Furthermore, once the lockdown has ended, the initial regulations will again apply, until terminated by the government. In terms of the provisions of the Disaster Management Act, 57 of 2002, the initial regulations may apply for up to 3 months but may be extended in certain circumstances.
4. The point of departure of the lockdown regulations is contained in regulation 11B(1)(a)(i) which provides that, for the lockdown period, which is defined as being from 23h59 on Thursday 26 March 2020 until 23h59 on 16 April 2020, unless extended, every person is confined to his/her place of residence, unless movement is allowed for purposes of the regulations. In light of the clear position, the regulations will have to be interpreted restrictively – if there is doubt, it would be safer to err on the side of caution.
5. Various of the definitions in the lockdown regulations need to be kept in mind for the rest of this discussion: 5.1. “Lockdown” means the restriction of movement of persons during the lockdown period as defined above;
5.2. “Movement” means entering or leaving a place of residence.
5.3. “Essential goods” means the following: 5.3.1. Food, which includes food products, but excludes alcoholic beverages, and further includes animal food, and chemicals, packaging and the like used in the production of food;
5.3.2. Cleaning and hygiene products, which include toilet paper, sanitary pads, condoms, hand sanitiser, disinfectants, soap, alcohol for industrial use, household cleaning products, and personal protective equipment;
5.3.3. Medical products, which include medical and hospital supplies, equipment and personal protective equipment and chemicals, packaging and the like used in the production of these products;
5.3.4. Fuel, which includes coal and gas;
5.3.5. Basic goods, which include airtime and electricity. It is important to note that basic goods have not been defined, and no definition could be seen in any other legislation or case law. A general definition would include those items used to satisfy human requirements that are needed in order to survive; and
5.3.6. The amended regulations further provide that cleaning and hygiene products shall also include products for the care of babies and toddlers, as well as personal toiletries such as hair care, body and face washes, deodorants and toothpaste.
5.4. “Essential services” include a list of 28 services, the most important of which for these discussions include the following: 5.4.1. the production and sale of essential goods as defined above;
5.4.2. grocery stores and spaza shops;
5.4.3. essential municipal services;
5.4.4. cleaning, sanitation, sewerage, waste and refuse removal services;
5.4.5. services related to the essential functioning of the courts;
5.4.6. postal services and courier services related to the transport of medical products;
5.4.7. private security services;
5.4.8. production, supply, logistics, delivery, critical maintenance, and repair, in relation to the rendering of essential services;
5.4.9. transport and accommodation for persons rendering essential services;
5.4.10. essential services as defined in the Labour Relations Act, 66 of 1995, and designated thereunder. These include any service which, if interrupted, such interruption would endanger the life, personal safety, or health of the whole or a part of the population;
5.4.11. the amended regulations also provide insurance services and medical scheme administration necessary to maintain the functioning of the banking and payment system; and
5.4.12. the amended regulations also now allow for critical maintenance services which cannot be delayed for 21 days, and which are essential to resume operations after the lockdown.
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