A guide to the duties imposed on South Africans during the lockdown

26 March 2020

INTRODUCTION

The duties imposed on South Africans during the lockdown are specified in Regulations issued in terms of Section 27(2) of the Disaster Management Act, 2002[1]as amended by Disaster Management Act, 2002: Amendment of regulations issued in terms of Section 27 (2)[2]. (To read these documents, click here and here.) It is possible that further amendments will be published in the future.

The purpose of this brief is to draw attention to the most important sections of the regulations as amended.

The amendment added a second chapter to the regulations which is concerned with legal obligations during the lockdown. Context for the second chapter is specified at places in the first chapter. Section 1A (2), which specifies that the lockdown extends from midnight on 26 March 2020 to midnight on 16 April 2020, or on a date to be specified by the Minister of Co-operative Governance and Traditional Affairs (“Minister”). The lockdown can therefore be extended by the Minister. Section 10 empowers the Ministers of Health, Justice and Correctional Services, Basic Education, Higher Education, Police, Social, Development, Trade and Industry and Transport to issue directions for specified purposes. It also confers general powers on all Ministers to issue directions within their mandates to address, prevent, and combat the spread of COVID-19.

The focus in the rest of this brief will be on Chapter 2 containing sections 11A to 11G of the regulations.

CHAPTER 2

The key sections of Chapter 2 are Section 11B (Restrictions on the movement of persons and goods) and Section 11C (Prohibition of Public Transport).

Section 11B confines every person to their place of residence, unless they are performing an essential service, obtaining an essential good or service[3], collecting a social grant, or seeking emergency, life-saving or chronic medical attention. It prohibits gatherings, except funerals attended by at most 50 people. It explicitly prohibits movement between provinces, and between metropolitan and district areas.

Section 11B closes down businesses not involved in the manufacturing, supply of provision of an essential good or service. It also closes down retail shops and shopping malls, except those where essential goods are sold and requires those remaining open to adhere to hygienic conditions. Retail stores which remain open can sell only essential goods. Any place not involved in the provision of an essential good or service must remain closed to all persons.

All places or premises specified in Annexure D must be closed to the public. These include places where religious, cultural, sporting, entertainment, recreational, exhibition, organisational or similar activities take place and a fifteen item list of places and premises normally open to the public. The Minister may add to the list of places to be closed.

All persons permitted to leave their residences may be subjected to screening for COVID-19 by an enforcement officer (a member of SAPS or the SANDF). Borders are closed, except for the transport of fuel and essential goods, and admission of people who need emergency medical attention.

Section 11C prohibits all commuter transport services, except buses, taxis, e-hailing service and private motor vehicles carrying people obtaining essential goods, seeking medical attention, and travelling to collect social grants and funerals. No vehicle used can carry more than 50% of its licensed capacity.

COERCION OF PERSONS

Section 4 of the Regulations removes the right of people confirmed as having contracted COVID-19, or suspected of same, or who have been in contact with a person who is a carrier of COVID-19 to refuse medical examination, prophylaxis, treatment, isolation or quarantine. Section 11Dprovides that a person refusing to be evacuated from any place subject to lockdown may be evacuated by an enforcement officer to a temporary shelter, if such action is necessary for the preservation of life.

OFFENCES OR PENALTIES

Section 11 makes the following an offence:

convening a gathering

permits more than 50 people at premises where liquor is sold and consumed

hinders, interferes with, or obstructs an enforcement officer in the exercise of their powers

failing to close a school or partial care facility

failing to observe restrictions on the sale, dispensing or transport of liquor

misrepresenting a person as being infected by COVID-19

publication of deceitful material about COVID-19

intentional exposure of another person to COVID-19.

These offences render persons convicted of offences to a fine or imprisonment of up to six months, or both. Intentional exposure may lead to prosecution for assault, attempted murder or murder.

Section 11G makes prohibited movement and entry into prohibited places or premises offences, render persons convicted of offences to a fine or imprisonment of up to six months, or both.

CONCLUSION

Crucial to the spread of COVID-19 is the number of persons infected by any bearer of COVID-19, a quantity denoted by R₀. An R₀ of more than 1 means continued growth of new infections. An R₀ of less than one means that they will start to drop. Estimates of R₀ vary widely.

A survey published in mid-February[4] found wildly varying estimates, ranging from 1.4 to 6.9, though the authors concluded that in more recent studies have estimations have stabilized between two and three. R₀ is not only determined by the nature of the virus. It is also influenced by social conditions and behaviour.

South African social conditions are not favourable, given extensive poverty, with attendant lack of amenities, particularly water in the home or yard and adequate sanitation, and overcrowding, making isolation more difficult. As a response, the government has sought to control behaviour conducive to the spread of infection, to the maximum extent possible. It is our only hope. Time will tell how effective the lockdown has been. It is highly likely that controls, in one form or another, will be needed beyond 16 April.

Charles Simkins, Head of Research, Helen Suzman Foundation. 

[1]Published in Government Gazette No 43107 dated 18 March 2020

[2]Signed by the Minister of Co-operative Governance and Traditional Affairs on 25 March 2020

[3]Essential goods and services are specified in section 11A and Annexure B

[4]Ying Liu, Albert A Gayle, Annelies Wilder-Smith and JoacimRocklöv, The reproductive number of COVID-19 is higher compared to SARS coronavirus, Journal of Travel Medicine, 27(2), March 2020