On 25 June 2020, the South African Department of Co-Operative Governance and Traditional Affairs issued an amendment to the regulations published by Government Notice No. R. 480 of 29 April 2020 as amended by Government Notice No. R. 608 of 28 May 2020 (previous Regulations), issued in terms of section 27(2) of the Disaster Management Act, 2002 (the amended Regulations). We set out below a summary of the key amendments to the previous Regulations.
The previous version of the Regulations provided that the National Department of Health (Department of Health) shall develop and maintain a national database for contract tracing purposes, which is the tracing of persons who are known or reasonably suspected to have come into contact with any person known or reasonably suspected to have contracted COVID-19 (COVID-19 Database). The amended Regulations extend the objectives and purposes of the COVID-19 Database, to allow the Department of Health to be guided in taking appropriate responses in addressing, preventing or combatting the spread of COVID-19. In addition to the use of the COVID-19 Database for contract tracing, the amended Regulations also permit the use of the COVID-19 Database for geospatial mapping. Such COVID-19 Database may include information such as names, identity numbers, residential addresses and cellular phone numbers. In addition, the COVID-19 database will include a list of all persons who have tested positive for COVID-19, their test results and the details of known or suspected contacts of such person who has tested positive for COVID-19. Although the information that may be collected remains the same, the Regulations have now introduced a discretion afforded to the Department of Health in terms of which additional information may be collected if such is deemed by the Department of Health to be necessary for its response to the pandemic. We suspect that this discretion may allow for racial profiling by the Department of Health using the COVID-19 data collected through the COVID-19 Database.
Under the previous Regulations, the Director-General: Health was entitled to direct an electronic communications service provider licensed under the Electronic Communications Act, 2005 to provide, for the inclusion in the COVID-19 Database, information regarding the location or movements of any person known or reasonably suspected to have contracted COVID-19 and the location or movements of any person known or reasonably suspected to have come into contact with such person, during the period 5 March 2020 to the date on which the national state of disaster has lapsed or has been terminated. The acquisition, disclosure and use of such information would only be permitted by authorized persons and only when necessary to assist in addressing, preventing or combatting the spread of COVID-19 through contact tracing purposes. Under the amended Regulations, the acquisition, disclosure and use of such information would also be permitted for geospatial hotspot mapping by authorised persons. Furthermore, in terms of the amended Regulations, such information must be included in the COVID-19 Database, where such information is relevant to the contact tracing process, or geospatial hotspot mapping.
In addition to the amendments to the previous Regulations discussed above, additional sub regulations were included in the amended Regulations. Some of these additional provisions relate to the use of electronic systems and applications to collect information to be included in the COVID-19 Database and detail the conditions for lawful processing of information collected as part of the COVID-19 Database. These conditions are in line with the conditions for lawful processing that have been legislated in the Protection of Personal Information Act, 2013 (POPIA) which came into effect on 1 July 2020.
Under the amended Regulations, the Department of Health is now authorised to develop and implement electronic systems or applications to be used on mobile devices or computers in order to collect, on a voluntary basis, information from the public for inclusion in the COVID-19 Database, provided that the following conditions are met:
- the information may only be collected for the purpose of guiding appropriate responses in addressing, preventing or combatting the spread of COVID-19, including for the purposes of geospatial hotspot mapping;
- the information is only obtained from users of mobile devices and computers on a voluntary and opt-in basis;
- the terms and conditions of the electronic system or application must explain and request the user's express consent regarding:
- which information will be collected and stored via the electronic system or application;
- the means by which the information will be collected and stored;
- the purposes for which the collected information will be used;
- the entities or persons to which the information will be transmitted and the conditions under which it will be transmitted;
- whether the information will be kept on the user's mobile device or on a centralised server;
- the period for which the information will be retained; and
- the notice that will be given to users once their information has been destroyed.
Furthermore, in terms of the amended Regulations, the Department of Health is authorised to receive, on a voluntary basis, information regarding members of the public from electronic systems or applications operated by private entities for inclusion in the COVID-19 Database, provided that the following conditions are met:
- the information may only be received and used in order to guide appropriate responses in addressing, preventing and combatting the spread of COVID-19, including for the purposes of geospatial hotspot mapping;
- the information has been obtained, by such private entity, from users of mobile devices and computers on a voluntary and opt-in basis; and
- such private entity has obtained the express consent of the user to transmit the information to the Department of Health for inclusion in the COVID-19 Database.
In terms of the amended Regulations, the Director-General of Health may appoint any organ of state, outside the Department of Health, or a private entity to provide the services necessary for carrying out of his/her powers and functions in terms of the Regulations. Such appointment of entities is only permitted where it is not reasonably possible for the services to be performed by the Department of Health itself due lack of the required expertise, equipment or personnel available or due to the delays that would result from the Department of Health performing the services itself.
Should such entities be appointed, the following conditions should be complied with:
- the appointed entities are bound by these Regulations as if it were the Director-General of Health or an official appointed by him or her;
- a written agreement is concluded with such appointed entity or organ of state which records that the entity or organ of state is bound by the Regulations and accepts that its employees are bound to comply with the Regulations;
- the employees of the appointed entity with access to such information shall also be required to sign an undertaking recording that they are bound by the Regulations;
- the information stored by the appointed entities or transferred to or from the appointed entities must be in an encrypted form, save where this is not possible in achieving the purposes of the Regulations, and access must be subject to password protection;
- logs of every person who has had access to the data must be retained in encrypted or unencrypted form, including the person's name, function, the date on which and the reason for which the data was accessed, which logs must be submitted by the appointed entities to the Director-General of Health every two weeks;
- only personal data that is adequate, relevant and limited to what is necessary in relation to the purpose may be processed;
- the appointed entities will keep any information or data obtained pursuant to its appointment separate from any other data of the appointed entities;
- the appointed entities may not retain any of the data obtained pursuant to its appointment, whether in original or duplicate form, after the end of the appointment period:
- the appointed entities may not disclose any information or data obtained pursuant to their appointment with any other person or entity, other than where expressly permitted in writing by the Director-General of Health for the purposes of this Regulation; and
- the Director-General of Health must inform the COVID-19 Designated Judge of the appointment of entities.
Movement of persons
- In terms of the previous Regulations a person is permitted to leave his/her place of residence for specified sets of circumstances under the Alert level 3. The amended Regulations extend these circumstances to permit travel for leisure purposes, however this is does not extend to travel between provinces. As provided for under the previous Regulations, persons are permitted to leave their place of residence: to perform any service permitted under Alert Level 3;
- to travel to and from work;
- to buy goods or obtain services that are permitted under Alert Level 3;
- to move children, as allowed;
- to exercise between 06h00 and 18h00, provided that the exercise is not done in organised groups and adhere to health protocols and social distancing measures. The amended Regulations now permit exercise in organised groups of no more than four people.;
- to attend a place of worship in the same or another metropolitan area or district within the same province; and
- to attend a school or learning institution.
Importantly, under the previous Regulations, movement between provinces, metropolitan areas and districts and hotspots was prohibited, except in the limited set of circumstances. In terms of the amended Regulations there is no longer a restriction on movement between metropolitan areas and districts and hotspots. However movement between provinces is still prohibited except in the following circumstances:
- in the course of carrying out work responsibilities or performing any service permitted under Alert Level 3, provided that such person is in possession of a permit issued by the employer in the prescribed form;
- persons travelling for purposes of—
- moving to a new place of residence; or
- caring for an immediate family member, provided that such person is in possession of an affidavit in the prescribed form;
- members of Parliament performing oversight responsibilities;
- learners or students who have to commute to and from schools or institutions of higher learning;
- the attendance of funerals subject to the Regulations;
- the transportation of mortal remains;
- obtaining medical treatment;
- persons who are returning to their place of residence from a quarantine or isolation facility; or
- any movement permitted under Regulation 41 which deals with the closure of borders.
The amended Regulations have now extended the type of gatherings that are permitted. In this regard, permissible gatherings have been extended from only faith-based institutions, funerals, workplaces for work purposes and agricultural auctions to include the following:
- conferences and meetings restricted to business purposes and subject to a maximum limit of 50 persons being physically present in the meeting and strict adherence to all health protocols and social distancing measures;
- cinemas, subject to a maximum of 50 persons and strict adherence to all health protocols and social distancing measures. The sale of tickets should be through a booking system;
- theatres, subject to a maximum of 50 persons and strict adherence to all health protocols and social distancing measures. There must also be a limitation on performers and crew to a maximum of 15 persons including live streaming or recording for distribution on digital platforms;
- casinos, subject to restriction on the number of persons allowed in the casino to a maximum of 50 percent of the available floor space, with patrons observing a distance of least one and a half metres from each other and strict adherence to all health protocols and social distancing measures;
- sporting activities; subject to directions issued by the Cabinet member responsible for sport after consultation with the Cabinet member responsible for health, in the following manner:
- non-contact sports matches, which may only include players, match officials, journalists, medical and television crew; and
- contact sports for training only;
- museums, galleries, libraries and archives, subject to strict adherence to all health protocols and social distancing measures;
- personal care services, including hairdressing, beauty treatments, make-up and nail salons and piercing and tattoo parlours, under specified conditions; and
- restaurants, subject to strict adherence to all health protocols and social distancing measures.
Places and premises closed to the public
In terms of the amended Regulations, the list of places or premises that are closed to the public has been reduced. In this regard, only the following places or premises remain closed to the public and all gatherings at these places or premises are prohibited( save for certain exceptions):
- gyms and fitness centres;
- sports grounds and fields and swimming pools, except for (i) training of professional athletes and non-contact sports matches as permitted and (ii) contact sports for training only, with restricted use of facilities;
- fêtes and bazaars;
- night clubs;
- accommodation establishments not formally accredited and licensed, such as private homes for paid leisure accommodation;
- conference facilities, except for business use as permitted by the Regulations;
- any on-premises consumption of liquor, including bars, taverns, shebeens and similar establishments, except as permitted by Regulations; and
- beaches and public parks.
The amended Regulations still provide that where people are able to work from home they must do so, however people are permitted to work outside of their homes, save for specific economic exclusions. Notably the specific economic activities that are excluded has also been reduced in the amended Regulations, to the following (due to certain of premises/places now being open to the public):
- on-site consumption of liquor;
- short term home-sharing/letting/leasing/rental for leisure purposes;
- domestic passenger air travel for leisure purposes, until directions with health protocols and social distancing measures are issued by the relevant Cabinet member responsible for transport;
- passenger ships for leisure purposes;
- sporting events, except as provided for in Chapter 4 of the Regulations;
- exclusions relating to public transport services as set out in the directions issued by the Cabinet member responsible for transport; and
- exclusions relating to education services as set out in the directions issued by the Cabinet members responsible for education.