COVID-19: QUESTIONS AND ANSWERS ON THE CURRENT LOCKDOWN REGULATIONS  

In the implementation of the current National State of Disaster provided for in the Disaster Management Act 57 of 2002 (“the Act”) and the national lockdown announced by President Ramaphosa, the Government enacted various “Lockdown Regulations”.  Many of these Regulations are not only novel in terms of our laws, but they interact with existing laws in a manner which was unpredictable before.

While, on 23 April 2020, the President announced a phased reduction in the Lockdown Regulations, it seems that many of the current Regulations will remain in place for some time to come.  With this in mind, we accordingly share with you our views in respect of frequently asked questions in relation to the COVID-19 pandemic and lockdown Regulations as at the date of this article.

ARE EMPLOYERS STILL OBLIGED TO PAY THEIR DOMESTIC WORKERS DURING THE LOCKDOWN PERIOD?

 Services rendered by domestic workers are not “Essential Services” as defined in the Regulations.  As such, domestic workers are required to stay at home during the lockdown.  Live – in domestic workers who stay on their employer’s premises are required to be in lockdown at their employer’s premises.  Since domestic workers cannot work remotely, they cannot fulfil their duty to their employers by being willing and able to tender their services.  The duty of an employer to pay an employee arises from this ability and willingness to render services.  In the circumstances, there is no legal obligation on employers to pay domestic workers who cannot work as a result of the lockdown and the principle of ‘no – work – no – pay’ will apply.

Domestic workers are therefore likely to be incredibly vulnerable during the lockdown period, and whilst Government interventions and measures to be initiated may provide some relief, Government has appealed to employers (who are able) to continue paying workers during the national lockdown.

SHOULD TENANTS CONTINUE TO PAY RENT FOR THE RESIDENTIAL PROPERTY THEY LIVE IN DURING THE LOCKDOWN?

 While it has made news that certain retail / commercial tenants suggested that they do not intend paying a portion or the entire monthly rental due to their landlords, this should not be accepted as a legally sound approach which any tenant may implement.

Tenants in a commercial lease agreement could, in certain circumstances, seek to rely on the contractual doctrine of force majeure.  In essence, force majeure is a contractual principle, recognised in South African law, whereby a party or all parties to a contract be relieved from performing an obligation in terms of that contract on the occurrence of pre – determined but unforeseeable future events which renders performance in terms of the contract impossible.

Whether the lockdown is viewed as a force majeure event is still to be seen.  Tenants who remain in their residential premises and thus enjoy full beneficial occupation thereof during the lockdown will have use and enjoyment of those residential premises.  As such, they will have difficulty seeking to avoid withholding payment of their rent.

CAN LITIGANTS STILL GO TO COURT DURING THE LOCKDOWN PERIOD AND WHAT WILL HAPPEN TO ONGOING LITIGATION PROCEEDINGS ALREADY BEFORE COURT?

 In terms of the Regulations, the Minister of Justice and Correctional Services and the Chief Justice published various Directives to “address, prevent and combat the spread of Covid 19 in all courts, court precincts and justice service points”.  These Directives include that:

•  civil matters, defined in the directives as matters “…which if not enrolled during the state of disaster, will lead to substantial injustice…” can be enrolled. These matters specifically include urgent applications in respect of bail, maintenance, domestic violence and matters involving children;
• civil matters set down during the lockdown period will be governed by the particular Directives of the Head of each Court; and
• the ordinary time periods regulated by the Rules of Court and / or legislation for the filing of pleadings, affidavits or notices in pending litigation was initially suspended by the Minister of Justice and Correctional Services’ Directive. Subsequently however, the Minister published supplementary Directives wherein any reference to the suspension of time periods was removed.

In the circumstances, litigants should have regard to the Practice Directives published by the various Judge Presidents of different High Court Divisions.  The Practice Directives of the Gauteng, Kwazulu – Natal and Western Cape Divisions of the High Court provide, inter alia, that:

• in the Western Cape Division –
  • ongoing “commercial matters” which do not deal with bail, maintenance etc, will not be heard and parties are not obliged to file papers other than notices to defend or oppose and pleas and that this can be filed electronically;
  • proceedings in new commercial matters will not be issued as the issuing of all such matters are suspended and only urgent matters (including matters relating to COVID – 19) dealing with bail, maintenance, domestic violence and matters involving children will be heard. (We are of the view however that the Western Cape High Court may very well consider hearing urgent matters if it can be shown that they are so urgent that the hearing thereof cannot wait until the end of the lockdown period.);
  • other than urgent matters as referred to above, the sheriff will not serve any proceedings to minimise non – compliance with dies periods; and
  • in terms of Direction 2A of the Supplemented Directives, matters involving a claim for a debt which will prescribe if papers are not issued are regarded, in terms of paragraph 5(c) of the Replacement Directions, as “urgent and essential”.

• in the Kwazulu – Natal Division –
  • ongoing commercial matters will not be heard and matters already enrolled will be removed from the roll and re – enrolled on the earliest available date;
  • in terms of the practice directive issued by the Honourable Judge President Jappie on 25 March 2020, parties are not obliged to file papers as the period 27 March to 17 April 2020 is to be considered as “dies non” and the time periods for the filing of pleadings were accordingly stayed; and
  • proceedings in new commercial matters will not be issued and only urgent matters (including matters relating to COVID – 19) dealing with bail, maintenance, domestic violence and matters involving children will be heard. (We are of the view however that the Kwazulu – Natal High Court may similarly consider hearing urgent matters if it can be shown that they are so urgent that the hearing thereof cannot wait until the end of the lockdown period.);

• in the Gauteng Division –
  • ongoing commercial matters will not be heard but parties may file papers by uploading it to the CaseLines platform which shall be deemed to be the effective service and filing on all parties. (The Legal Practice Council however viewed this to mean “must” having regard to the specific removal by the Minister of time periods in his supplementary Directives.  Attorneys in this division accordingly treated this Practice Directive to mean that ordinary time periods continue to apply in respect to Court process and / or the delivery of any documents within such stipulated periods.);
  • proceedings in new commercial matters will not be issued and only urgent applications deemed to be so urgent that they cannot wait to be heard after the lockdown will be entertained; and
  • with regard to matters involving claims for debts that would prescribe during the lockdown period, summonses may be issued during the lockdown period to avoid prescription and legal practitioners may apply for a permit to the Legal Practice Council to attend Court to have such a summons issued and served. (The sheriff’s office is considered an essential service and will thus be entitled to attend to the service of such a summons.)

In general, it seems that the majority of matters will be somewhat stationary for the lockdown period and that any applications not dealing with issues relating to bail, maintenance, domestic violence and matters involving children will not be heard unless it can be shown that such matters are so urgent that the hearing thereof cannot wait until the end of the lockdown period.  In this regard however, anyone considering approaching a Court on this basis should mindful of incurring adverse costs orders having regard to the case of NEHAWU v Minister of Health wherein the Court in fact adjusted the standards of what ordinarily constitutes frivolous and vexatious litigation.

HOW DOES THE LOCKDOWN PROVISIONS AFFECT PERSONS LIVING IN A SECTIONAL TITLE PROPERTY?

 Whether property owners in Sectional Title Scheme are entitled to make use of common property in such Schemes is the subject of heated debate amongst legal experts.  It seems that there is uncertainty in this regard which is created by the novelty of the lockdown measures and the Regulations currently in place.  This is further complicated by the fact that the rules of different Sectional Title Schemes are diverse both in respect of their application and the common use areas to which they apply.

The starting point is that in terms of the Regulations “every person is confined to his or her place of residence” which would mean an owner’s exclusive use area.  Ordinarily an owner in a Sectional Title Scheme owns a property (like an apartment) comprising of a section and (collectively with the other property owners) an undivided share in the common property.  Depending on the Scheme, owners could enjoy the exclusive use of a part of the common property, for example a specific parking bay.

If one maintains the view that common property is included as part of an owner’s residence, an owner in the Sectional Title Scheme should be entitled to, for example, jog on the property or walk a dog just as the owner of a freehold property would.  The other provisions of the Regulations must however still be observed and such persons would for example not be permitted to gather in the clubhouse in large groups, if at all.  The counter argument is that the Regulations do not make mention of the words “common property” but are very clear on the confinement of persons to their “residence” and that the purpose of the Regulations are that people are to be confined to their residences and not common property areas.  In support of this view, the Community Schemes Ombud Service (“CSOS”) published COVID – 19 Directives and issued amendments thereto on 21 April 2020.  The amended Directives stipulate, inter alia, that:

• owners and occupiers in Sectional Title Schemes may only use common areas insofar as access is for necessary or essential use. (In this regard examples are provided of using a driveway shared by all residents or using facilities such as a laundry or refuse room.)
• scheme executives must –
  • publish a list of essential common property facilities which are necessary for use during the lockdown period;
  • ensure that a limited number of people gather to utilise shared common facilities and may implement measures to ensure residents’ safety which do not require CSOS approval provided that such measures are in compliance with the Regulations, are fair and of general application to all residents and are not prejudicial to any person with the scheme; and
• owners and occupiers are not allowed to walk around or perform any activity in the common areas unless such activity is classified as essential by the scheme executives.

The SAPS in turn adopted the approach that the use of common areas during the lockdown period is a contravention of the Regulations.  While the SAPS requested Scheme executives to assist them in enforcing the approach that common areas are off – limits during the lockdown period, it is unlikely that the rules of any particular Sectional Title Scheme provide their respective scheme executives with the power to restrict the movement of residents in the same manner as the SAPS.  Provided that the rules of any Scheme provide therefore, the scheme executives could potentially issue fines to residents making use of common areas.  Any further actions (such as attempting to arrest residents) which amount to the enforcement of Section 27 of the Regulations is, in our view, the domain and responsibility of law enforcement agencies and not the responsibility of the scheme executives.

Since there remains much uncertainty surrounding the effect of the lockdown Regulations, we are of the view that every situation will require determination having regard to its own facts and circumstances.  In such circumstances it is recommended that you consult an attorney for further advice.

JAN-HENDRIK SENEKAL Umhlanga Office