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:
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 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:
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