South Africa entered into the adjusted Level 3 lockdown, due to the new and more contagious strain of COVID-19 on 28 December 2020 (“Adjusted Level 3 Regulations”). The Adjusted Level 3 Regulations impact individuals and business owners alike. What follows is a brief overview of the implications of the Adjusted Level 3 Regulations.

The Adjusted Level 3 Regulations contain further restrictions and stricter penalties for non-compliance with the intention of curbing the spread of the virus while retaining a functioning economy insofar as possible.

Amendments under adjusted level 3

The wearing of a face mask is mandatory for every person when in a public place. Public places include the workplace, public transport and retail stores. Any person who fails to comply with a verbal instruction by an enforcement officer to wear a face mask, commits an offence and is, on conviction, liable to a fine or a period of imprisonment not exceeding 6 (six) months, or to both such fine and imprisonment.

Every person is confined to his or her place of residence from 21:00 until 06:00 daily unless a person has been granted permission through directions by the relevant Cabinet member or a permit or is attending to a security or medical emergency.

Closing time for cinemas, theatres, casinos, museums, galleries, archives, gyms, fitness centres, restaurants, venues hosting auctions and venues hosting professional sport, whether indoors or outdoors is 20:00.

Gatherings at gyms and fitness centres, cinemas, casinos, auctions, museums, galleries, libraries and archives are limited to 50 (fifty) persons or less for indoor venues and 100 (one hundred) persons or less for outdoor venues and if the venue is too small to hold the prescribed number of persons observing a distance of at least 1,5 metres from each other, then not more than 50 (fifty) percent of the capacity of the venue may be used.

An owner or operator of any indoor or outdoor facility where gatherings are held must display the certificate of occupancy which sets out the maximum number of persons the facility may hold.

The following gatherings are prohibited for 2 (two) weeks from the start of adjusted level 3, after which this provision will be reviewed:

  • all social gatherings, including faith-based gatherings;
  • gatherings at political events and traditional council meetings;
  • gatherings at sports grounds and fields; and
  • gatherings at public parks.

Game Parks, botanical gardens, aquariums and zoos are open to the public from 09:00 to 18:00.

Funerals are limited to a maximum of 50 (fifty) persons and the duration of the funeral is limited to 2 (two) hours. There must be at least 1,5 metres between each person and everyone must be wearing a mask. If the venue is too small to hold 50 (fifty) then not more than 50 (fifty) percent of the capacity of the venue may be used. Night vigils, after-funeral gatherings, including “after-tears” gatherings, are not allowed.

Under Adjusted Level 3 Regulations the following places will remain closed to the public:

  • night clubs;
  • swimming pools, save for the training of professional athletes or swimming contests permitted in the Adjusted Level 3 Regulations;
  • bars, taverns and shebeens;
  • parks and recreational activities where there are no access control measures; and
  • all other places determined by the Cabinet Minister responsible for cooperative governance and traditional affairs.

Under Adjusted Level 3 Regulations the following activities are prohibited:

  • initiation practices and post-initiation practices;
  • evictions, unless by order of a competent court; and
  • the sale, dispensing and distribution of alcohol.

Impact of the Adjusted Level 3 Regulations on business owners

Under Adjusted Level 3 Regulations an employer has the following obligations and responsibilities:

  • to adhere to all sector specific or other health and safety protocols issued to date;
  • to appoint a compliance officer to enforce compliance with the Adjusted Level 3 Regulations and all other health and safety protocols issued to date;
  • prohibit employees from entering the workplace or performing their duties unless an employee is wearing a face mask;
  • determine the floor plan area of the workplace and the number of persons who may enter the workplace based on the floor plan area, while still maintaining a physical distance of 1.5 metres;
  • ensure all persons queuing either inside or outside their premises maintain a physical distance of 1.5 metres;
  • take measures to enforce physical distancing of 1.5 metres in its workplace, including implementing measures such as remote work, restrictions on face-to-face meetings and taking special measures in relation to employees who are considered vulnerable due to their age or co-morbidities; and
  • provide hand sanitisers outside its premises.

Employers should notify employees that they will be required to self-quarantine upon return from a hotspot area and that they will need to make use of annual leave or unpaid leave for this period where they are unable to work from home.

An employer is not entitled to discipline an employee for their conduct outside of the workplace unless an employer can prove that the conduct of an employee has damaged the employment relationship in some way, by not maintaining a safe working environment. Employers cannot discipline employees and can only encourage them to adhere to government protocols outside of the workplace.

How employers can mitigate the spread of COVID-19

An employer may implement the following measures to mitigate the risk of a COVID-19 outbreak in the workplace:

  • send communication to all employees ahead of the return to work encouraging them to adhere to all health and safety protocols outside the working environment;
  • remind employees ahead of the return to work of the mandatory health and safety measures as required by government;
  • encourage employees who visited a hotspot area to disclose such information to the human resources department or the COVID-19 compliance officer;
  • encourage employees returning from area’s identified as hotspots to observe the mandatory 10-day quarantine period;
  • encourage employees who display any symptoms of COVID-19 to remain at home and, in serious cases, to submit themselves for testing;
  • maintain strict screening protocols upon entrance to the workplace in 2021 including enforcing the wearing of masks and the use of hand sanitiser before entering the workplace; and
  • ensure that all health and safety measures are strictly adhered to, as many employees may be asymptomatic.

VDMA’s team of experts are available to assist your business with all of your COVID-19 related obligations and responsibilities, including enforcing COVID-19 compliance in relation to the Adjusted Level 3 Regulations.

06 January 2021