Covid-19 business criminal law and other issues in South Africa

All businesses are required to comply with health and safety legislation. Failure to comply with such legislation may result in such businesses facing criminal liability.

Occupational Health and Safety Act No 85 of 1993

The Occupation Health and Safety Act No 85 of 1993 ("OHSA") provides for, amongst others, the health and safety of persons at work. The OHSA provides that:

• All employers are required to provide and maintain a working environment that is safe and without risk to the health of its employees. This duty includes, amongst others, enforcing such measures as may be necessary in the interest of health and safety (section 8(1) read with section 8(2)(h)).
• All employers are required to conduct their businesses in such a manner as to ensure that other persons (i.e. non-employees) who may be directly affected by its activities are not exposed to hazards to their health or safety (section 9(1)).
• All employees are required at work to:
  • take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions;
  • obey the employer's health and safety rules and procedures;
  • report to the employer if any situation which is unsafe or unhealthy comes to his/her attention, as soon as practicable; and
  • report to the employer if he/she is involved in any incident which may affect his health, as soon as practicable (section 14). 
• Every chief executive officer is required to ensure that the duties of the employer under the OHSA are properly discharged (section 16(1)).

Any person who contravenes or fails to comply with the aforementioned provisions or wilfully or recklessly does anything at a work-place which threatens the health or safety of any person is guilty of an offence and on conviction may be liable to a fine of up to R50,000.00 or to imprisonment for a period of up to one year, or to both a fine and imprisonment (section 38).

Furthermore, any employer who does or omits to do an act which causes a person to be injured at a work-place (or in the case of one of its employees, which causes such employee to be injured at any place in the course of his/her employment) would be guilty of an offence if the employer would in respect of that act or omission have been guilty of the offence of culpable homicide had that act or omission caused the death of the said person (irrespective of whether or not the injury could have led to the death of such person). On conviction, such employer may be liable to a fine of up to R100,000.00 or to imprisonment for a period of up to two years, or to both such fine and imprisonment.

Therefore, a business may face criminal liability for exposure or risk of exposure to COVID-19 to staff or business partners and the public if it does not take the necessary measures to safeguard the health of staff, as well as business partners and the public, from contracting COVID-19 in relation to the conduct of its business.

Disaster Management Act No 57 of 2002

On 15 March 2020, the South African Government declared "a national state of disaster having recognised that special circumstances exist to warrant the declaration of a national state of disaster" arising from the COVID-19 pandemic (GN 313 in GG 43096 of 15 March 2020). It did so via section 27(1) of the Disaster Management Act ("Disaster Act"). Under section 27(2) of the Disaster Act, regulations or directions may be issued once a national state of disaster has been declared.

Since 15 March 2020, numerous regulations have been issued under the Disaster Act.

Risk-Adjusted Strategy Regulations issued on 29 April 2020

On 29 April 2020, the Minister of Cooperative Governance and Traditional Affairs issued the latest set of section 27(2) Regulations ("the Current Regulations"). The Current Regulations repealed all previous regulations issued under the Disaster Act since the declaration of a national state of disaster on 15 March 2020.

The following constitute offences under the Current Regulations:

• Any person intentionally misrepresenting that he, she or any other person is infected with COVID-19. On conviction, such a person may be liable to a fine or to imprisonment for a period of up to six months, or to both a fine and imprisonment;
• Any person publishing any statement, through any medium (including social media), with the intention to deceive any other person about COVID-19, the COVID-19 infection status of any person, or any measure taken by the Government to address COVID-19. On conviction, such a person may be liable to a fine or imprisonment for a period of up to six months, or to both a fine and imprisonment; and
• Any person intentionally exposing another person to COVID-19 may be prosecuted for an offence, including assault, attempted murder or murder (regulation 14).

Therefore, under the Current Regulations, senior management or other company representatives could face criminal liability for any exposure or risk of exposure if it is found that they intentionally exposed another person to COVID-19.

OHSA

Furthermore, senior management or other company representatives could face criminal liability for a breach of those provisions of sections 8, 9, 14 and 16 of OHSA referred to more fully in question one above.

The penalties for the business and its management for a breach of the relevant provisions of OHSA are referred to more fully in question one above.

At the time of writing, we are not aware of any actual prosecutions of businesses or senior management relating to breaches of regulations made under the Disaster Act or for breaches of the OHSA in relation to COVID-19 issues.

General measures applicable during the duration of the national state of disaster

Regulation 5 of the Current Regulations sets out general measures to be applied to contain the spread of COVID-19. It requires every employer to provide to every of its employees who may come into direct contact with members of the public as part of their duties with a cloth face mask (or a homemade item or another appropriate item) to cover such employee's nose and mouth (regulation 5(3)).

In addition, every business premises including, but not limited to, a supermarket, shop, grocery store, retail store, wholesale produce market or pharmacy is required to implement the following measures:

• Determine their area of floor space in square metres and, based on this determination, calculate the number of customers and employees that may be inside the premises at any time with adequate space available;
• Take steps to ensure that persons queuing inside or outside the premises are able to maintain a distance of one and a half metres from each other;
• Provide hand sanitisers for use by the public and employees at the entrances to the premises; and
• Assign an employee or other suitable person, in writing, as the compliance employee who will be required to ensure compliance with the aforementioned measures as well as that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19 are adhered to (regulation 5(4)).

All employers are also required to adopt measures to promote physical distancing of employees including:

• enabling employees to work from home or minimising the need for employees to be physically present at the workplace;
• the provision of adequate space;
• restrictions on face to face meetings;
• special measures for employees with known or disclosed health issues or comorbidities, or with any condition which may place such employees at a higher risk of complications or death if they are infected with COVID-19; and
• special measures for employees above the age of 60 who are at a higher risk of complications or death if they are infected with COVID-19 (regulation 5(5)).

All courier and delivery services are required to provide for minimized personal contact during delivery (regulation 5(7)).

Risk-Adjusted Strategy Alert Levels

In South Africa, a Risk-Adjusted Strategy has been implemented for the current lockdown. Under this system, certain restrictions to movement as well as the operation of certain businesses will be applicable based on the level of risk applicable at the relevant time. These levels range from one to five with Level 5 being the most restrictive in terms of movement and the operation of certain businesses and Level 1 the least restrictive. For example, Alert Level 5 lockdown only allowed persons and businesses performing essential services to operate subject to certain health and safety conditions. “Essential services” is defined in the Labour Relations Act No 66 of 1995 as those services that, if interrupted would endanger the life, personal safety or health of the whole or any part of the population.

South Africa was at Alert Level 4 lockdown during the period 1 May 2020 until 31 May 2020. During this period, certain businesses were allowed to resume operations subject to certain requirements as part of the gradual reopening and revival of the economy and business operations. During the period 1 June 2020 until 17 August 2020, South Africa was at Alert Level 3 lockdown. During the period 18 August 2020 to 20 September 2020, South Africa was at Alert Level 2 lockdown. During the period 21 September 2020 until 28 December 2020, South Africa was at Alert Level 1 lockdown. During the period 29 December 2020 until 28 February 2021, South Africa was at Adjusted Level 3 lockdown. During the period 1 March 2021 until 30 May 2021, South Africa was at Adjusted Level 1 lockdown. As from 31 May 2021, South Africa is at Adjusted Level 2 lockdown.

Adjusted Level 1 requirements (applicable at present)

During Adjusted Level 2:

• an employer may not allow any employee to perform any duties or enter the employment premises if the employee is not wearing a face mask while performing his or her duties (regulation 49C(5));
• every business premises, including, but not limited to, a supermarket, shop, grocery store, retail store, wholesale produce market or pharmacy is required to:
  • determine their area of floor space in square metres;
  • based on the aforementioned information, determine the number of customers and employees that may be inside the premises at any timein order to ensure that customers and employees inside the premises do not exceed 50 percent of the floor space, subject to strict adherence to all health protocols and social distancing measures;
  • take steps to ensure that persons queuing inside or outside the premises are able to maintain a distance of one and a half metres from each other;
  • provide hand sanitisers for use by the public and employees at the entrance to the premises; and
  • assign, in writing, an employee or any other suitable person, as the compliance employee, who must ensure compliance with the aforementioned measures and that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID 19 are adhered to. (regulation 49C(6)).

All employers are required to adopt measure to promote physical distancing of employees, including:

• enabling employees to work from home or minimising the need for employees to be physically present at the workplace;
• the provision for adequate space;
• restrictions on face to face meetings;
• special measures for employees with known or disclosed health issues or comorbidities, or with any condition which may place such employees at a higher risk of complications or death if they are infected with COVID-19; and
• special measures for employees above the age of 60 who are at a higher risk of complications or death if they are infected with COVID-19. (regulation 49C(8))

Every person, when attending a gathering and in order to limit exposure to COVID-19 is required to wear a face mask, adhere to all health protocols, maintain a distance of at least one and a half meters from each other and adhere to any other health protocols and social distancing measures as provided for in directions issued by the relevant Cabinet member after consultation with the Cabinet member responsible for health (regulation 73(1)). 

Gatherings at a workplace for work purposes are allowed, subject to strict adherence to all health protocols and social distancing measures (regulation 53(4)).

During Adjusted Level 1, gatherings at the following places are allowed, subject to the following limitations:

• hotels, lodges, bed and breakfasts, timeshare facilities, resorts and guest houses are allowed full capacity of the available rooms for accommodation, with patrons wearing face masks and observing a distance of at least one and a half metres from each other when in common spaces;
• conferencing, dining and entertainment facilities are subject to a limitation of a maximum of 100 persons or less for indoor venues and 250 persons or less for outdoor venues and if the venue is too small to hold 100 persons indoors or 250 persons outdoors observing a distance of at least one and a half metres from each other, then not more than 50 percent of the capacity of the venue may be used; and
• every business premises, including but not limited to supermarkets, shops, grocery stores, produce markets and pharmacies, are subject to a limitation of 50 percent of the floor space, which includes customers and employees, and subject to strict adherence to all health protocols and social distancing measures. (regulation 53(5))

Businesses operating during Adjusted Alert Level 2 are required to:

• adhere to relevant health protocols and social distancing measures in instances where employees are employed in private residences;
• adhere to relevant health protocols and social distancing measures set out in any directions issued, in addition to the occupational health and safety directions issued by the Cabinet member responsible for employment and labour, and applicable labour legislation; and
• adhere to any sector-specific health protocols intended to limit the spread of COVID-19 in the sector concerned. These sector-specific health protocols may address matters such as work rotation, staggered working hours, shift systems, remote working arrangements, special measures affecting persons with greater vulnerabilities or similar measures, in order to achieve social distancing, protect employees or limit congestion in public transport and at the workplace. (regulation 63(2) to (4))

Industries, businesses and entities in both public and private sectors which are operating during Adjusted Alert Level 2 are further required to:

• develop a plan containing measures to ensure that the workplace meets the standards of health protocols, adequate space for employees and social distancing measures for the public and service providers, as required;
• retain a copy of the plan for inspection, which plan must also contain the details of the COVID-19 Compliance officer; and
• designate a COVID‑19 compliance officer who is required to oversee:
  • the implementation of the aforementioned plan; and
  • strict adherence to the standards of hygiene and health protocols relating to COVID 19 at the workplace. (regulation 49B(1))

A person in control of a retail store or institution is required to:

• take steps to ensure that customers keep a distance of at least one and a half metres from each other and that all directions in respect of health protocols and social distancing measures are strictly adhered to;
• designate a compliance officer to ensure that safety controls are strictly adhered to; and
• display the name of the compliance officer prominently in the store or institution in a visible area (regulation 67(2)).

Annexure E of the Current Regulations provides that a COVID-ready “Workplace Plan” must be developed prior to the reopening of an enterprise employing persons or serving the public. For small businesses, the Workplace Plan can be basic reflecting the size of the business, while for medium and larger businesses, a more detailed written Workplace Plan should be developed given the larger numbers of persons at the workplace.

The Workplace Plan for medium and large businesses is required to include the following:

• the date the business will open and hours of opening;
• the timetable setting out the phased return-to-work of employees, to enable appropriate measures to be taken to avoid and reduce the spread of the virus in the workplace;
• the steps taken to get the workplace COVID-19 ready;
• a list of staff who can work from home, staff who are 60 years or older and staff with comorbidities who will be required to stay at home or work from home;
• arrangements for staff in the establishment:
  • sanitary and social distancing measures and facilities at the entrance and exit to the workplace;
  • screening facilities and systems;
  • the attendance-record system and infrastructure;
  • the work-area of employees;
  • any designated area where the public is served;
  • canteen and bathroom facilities;
  • testing facilities (for establishments with more than 500 employees);
  • staff rotational arrangements (for establishments where fewer than 100% of employees will be permitted to work);
• arrangements for customers or members of the public, including sanitation and social distancing measures.

As the alert levels change, it is important for businesses to have regard to the latest regulations issued at the relevant time to ensure that they meet with the relevant requirements.

OHSA Directive

On 1 October 2020, the Minister of Employment and Labour issued the 'Consolidated Directions on Occupational Health and Safety Measures in certain Workplaces’ (GN 1031 in GG 43751 of 1 October 2020).  

This Directive applies to employers and workers in workplaces permitted to continue or commence operations under the Current Regulations. This Directive does not apply to a workplace that is excluded from the OHSA in terms of section 1(3) of the OHSA or in respect of which another Minister has issued a direction under the Current Regulations dealing with health and safety.

This Directive sets out numerous Administrative, Social Distancing and Health and Safety measures which should be implemented. These include, amongst others:

• conducting a risk assessment to give effect to the minimum measures required by this Directive;
• notifying workers of the contents of this Directive and the manner in which it intends to implement it;
• notifying employees that if they are sick or have symptoms associated with COVID-19 that they must not come to work and to take paid sick leave;
• minimizing the number of workers on at the workplace at any given time through rotation, staggered working hours, shift systems, remote working arrangements or similar measures in order to achieve social distancing;
• taking measures to minimize contact between workers as well as between workers and members of the public;
• arranging the workplace to ensure minimal contact between workers and as far as practicable ensuring that there is a minimum of one and a half metres between workers while they are working, for example, at their workstations;
• taking measures to screen any worker when they report for work in order to:
  • ascertain whether they have any of the symptoms associated with COVID-19, namely a cough, sore throat, shortness of breath (or difficulty in breathing) or loss of smell or taste;
  • determine whether they suffer from any of the following additional symptoms: fever, body aches, redness of eyes, nausea, vomiting, diarrhea, fatigue, weakness or tiredness;
• not permitting a worker to enter the workplace or report for work if he/she presents with the aforementioned symptoms or advises the employer of those symptoms;
• ensuring (free of charge) that there are sufficient quantities of hand sanitizer based on the number of workers or other persons who access the workplace at the entrance of and in the workplace. Employers should also provide employees who work away from the workplace (other than at home) with an adequate supply of hand sanitizer; and
• providing each of its employees (free of charge) with a minimum of two cloth masks (which comply with the requirements set out in the Department of Trade, Industry and Competition: Recommended Guidelines Fabric Face Masks) for the employee to wear while at work and while commuting to and from work.

There is scope for civil claims. This ultimately depends on how businesses adjust to the COVID-19 crisis and the measures they implement to mitigate the risk of infection incurring during the course of conducting their respective businesses as well as the extent to which they have complied with the Current Regulations as well as any other regulations that may issued under the Disaster Act.

Staff

Pursuant to section 65 of the Compensation for Occupational Injuries and Diseases Act No 130 of 1993 ("COIDA"), an employee is entitled to claim compensation from the Compensation Fund if the employee has contracted a disease out of and in the course of his/her employment.

On 30 June 2020, the Minister of Employment and Labour issued a Directive on Compensation for Workplace-acquired Novel Corona Virus Disease (COVID 19). It became effective on 23 July 2020. 

This Directive  deals with “workplace acquired COVID 19 resulting from work related exposures; exposure to suspected or confirmed case(s) of COVID 19 in the workplace; or while travelling on an official trip to high risk countries or areas on work assignment or while performing any duty pursuance of the employer’s business”. It sets out, amongst others, the prescripts to be followed when submitting claims for workplace-acquired COVID-19.

Therefore, an employee's civil recourse for contracting workplace-acquired COVID-19 would be to claim against the Compensation Fund.

Business partners and members of the public

These claims may be based on breach of contract, statute or otherwise. This will ultimately depend on the circumstances of each case. Potential claims could include where business partners or members of the public were subjected to unsafe conditions. This is particularly relevant for businesses that provide in-person services, such as hospitality, transport, entertainment venues, leisure and tourism.

Class actions / Group Claims

Class action litigation is relatively new in South Africa. Class actions follow a two-stage process in South Africa. A certification application is the first step. Prior to instituting a class action, the potential plaintiffs are required to obtain permission from a court resulting in certification of the class. In order to obtain such permission, there are numerous requirements which must be met. These include, amongst others, that there are sufficient issues of fact or law which are common to all members of the class. Once a class has been certified, the matter will proceed by way of a trial action.

Therefore, companies may face possible group claims arising from a single event, such as where companies do not adhere to the Current Regulations or any other regulations issued pursuant to the Disaster Act which results in exposure to individuals of unsafe conditions.