LEGAL, REGULATORY AND TAX
The Legal, Regulatory and Tax Workgroup is a collaboration amongst contributing law firms that are providing pro-bono support to the Business for South Africa COVID-19 Initiative. The Workgroup collaborates with business and partners with government in facilitating a conducive and enabling regulatory environment during the national response to the COVID-19 pandemic.
Law firms have each assembled teams to provide legal support in the following categories:
- Tax and customs
- Logistics and transport
- Competition law
- Banking and fiscal relief
- Industrial policy intervention (including international trade)
- Public procurement and PFMA
- Solidarity Fund
- Food Security
- IT and telecommunications
- Energy security
- Health services
- Constitutional law
- Landlord and tenant
- Insolvency and business rescue.
- Those listed on Schedule A and B of the regulations
- Those industries that are already officially registered under the Labour Relations Act as an Essential Service. The list of such services is available on CCMA website, under advice and information sheets, and is up to date.
Businesses are encouraged to adopt a responsible and practical approach to identify whether you should remain in operation, either in full or in part. The lockdown cannot be so broad as to render the lockdown effort ineffective. Normal commercial operations do not qualify as essential services unless its employees are able to work remotely from their place of residence. Bottom line - only remain open if you are a part of supplying a product or service that is essential under the current circumstances.
This is currently not obligatory in terms of the regulations to register on bizportal. This portal has been put in place as an additional measure to give comfort to business and employees if they get stopped by police officers. It will also help government understand and better manage essential business services during this time.
While it is currently not a legal condition of operation, it is recommended, that all registered companies operating an essential business registers on the CIPC bizportal website, as this may become a requirement in the future.
Note: only registered companies are able and currently required to get certificates from bizportal. All of the following are automatically exempt and do not require a DTIC/CIPC certificate:
- All public sector health departments and facilities including the NHLS. NICD, Provincial Departments and hospitals, local government primary health care and clinics;
- All essential business sole traders - e.g. GPs or informal traders;
- All medical NGO’s such as Medicins san Frontiere
The lockdown regulations require voluntary compliance and responsible self-identification as an essential business or part thereof. You do not need to get a specific exemption. It is recommended, however, that you register on the CIPC bizportal website if you are a company as it is possible this may become a requirement in the future.
Yes, there are basic functions that will be important to maintain or to prevent the destruction or significant impairment of working areas, plant, machinery or inventory, or to permit orderly shutdown arrangements of businesses.
The essential services list also makes provision for the maintenance and security of property and IT infrastructure to enable businesses to operate financial and payroll systems in particular.
|These particular essential services are covered in the Annexure B Regulations as follows:||Reference to Regulation|
|financial services necessary to maintain the functioning of the banking and payments environment including the JSE and similar exchanges, as well as Insurance services||Annexure B, B(3)
|telecommunications infrastructure and services||Annexure B, B(13)|
|private security services||Annexure B, B(20)|
|critical maintenance and repair in relation to the rendering of essential services including components and equipment||Annexure B, B(24)|
|implementation of payroll services during the lockdown||Annexure B, B (32)|
|maintenance related to the supply and production of electricity, water, gas and fuel services||Annexure B, B(6)|
Yes, the operating times for public transport and private transport arrangers by essential services businesses is regulated by the directives issued by the Minister of Transport 26 March and 31 March as follows:
|Public transport services may ferry essential services employees from 05h00 to 10h00 and from 16h00 to 20h00.
Minibuses and Midibuses Public Transport are provided with the following grace periods for picking up and dropping-off of passengers and are permitted:
a) to proceed to a pickup point an hour before the operating times; and
b) to proceed to drop off points an hour after the drop off times
c) to proceed to a pick-up point without loading passengers at 15h00 in order to start picking up at 16h00 to 20h00 to finish dropping off passengers at 21h00.
|Private institutions or companies may make arrangements for the transportation of their employees who are rendering essentials services in line with the operating shifts, work time schedules as determined by:
a) the responsible head of operations, Manager;
b) Head of the Department; or
c) a person with responsible authority within such Institution.
The operating shifts or work schedules or timetable should be stamped and signed by such person with authority.
- Stay calm and be respectful
- Understand the complaint and respond
- Produce relevant documentation (as per above) and ask the law enforcement officer to verify this with your company representative, if applicable
- Only if you can’t resolve the problem, reach out to a Provincial SAPS Commissioner or an attorney, as appropriate
Note: Details of Provincial SAPS Commissioner and a limited list of attorneys is contained in Annex B
Stay calm, produce your documentation (as per above), and ask them to verify this with your company representative.
An essential business will be required to demonstrate that it is transporting an essential product or part of an essential service for the local or international market. A letter on a company letterhead should explain why the transportation is part of an essential service, referring to the relevant provision in the regulations. It is advisable to also carry the CIPC certificate.
Yes, this will continue. Ports, including inland ports are required to remain open for transportation of essential products and services across the border.
We encourage people to continue to remain productive and work from home if this is feasible provided that this does not require physical contact with non-residents, or impair the Covid19 response. This is specifically provided for in the amended regulations under 11B(1)(b) (as amended).
Please contact your industry association / contact person and ask them to consolidate and then feed through queries and comments to a central coordinating point as quickly as possible.
We appreciate that these are uncertain times and you may have many questions. We need to take responsibility for applying cool heads as to what is required of us under the current circumstances. Government will need to rely on us to self-comply, using our best judgement in the circumstances.
We ask all businesses and people to take this lockdown seriously and to help us respond as effectively as possible to the country’s efforts to contain and minimise the impact of Covid19.
Annex A – CATEGORISATION OF ESSENTIAL GOODS AND SERVICES
The meaning of “essential goods” in important for understanding the scope of some of the essential services referred to below.
|Essential Goods per the Regulations|
i. Any food product, including non-alcoholic beverages;
ii. Animal food; and
iii. Chemicals, packaging and ancillary products used in the production of any food product.
|2||Cleaning and Hygiene Products:
i. Toilet Paper, sanitary pads, sanitary tampons, condoms;
ii. Hand sanitiser, disinfectants, soap, alcohol for industrial use, household cleaning products, and personal protective equipment;
iii. Chemicals, packaging and ancillary products used in the production of any of the above.
iv. Products for the care of babies and toddlers.
v. Personal toiletries, including haircare, body and face washes, roll-ons, deodorants, toothpaste.
i. Medical and Hospital Supplies, equipment and personal protective equipment; and
ii. Chemicals, packaging and ancillary products used in the production of any of the above.
|4||Fuel, including coal and gas|
|5||Basic goods, including airtime and electricity.|
|Essential Services per the Regulations|
|1||Medical, Health (including Mental Health), Laboratory and Medical services and the National Institute for Communicable Diseases|
|2||Disaster Management, Fire Prevention, Fire Fighting and Emergency services
|3||Financial services necessary to maintain the functioning of the banking and payments environment, including the JSE and similar exchanges, as well as insurance services and medical scheme administration|
|4||Production and sale of the goods listed as essential goods in the Regulations (see table below)|
|5||Grocery stores, including spaza shops
|6||Electricity (including vital demand management services), water gas and fuel production, supply and maintenance|
|7||Critical jobs for essential government services as determined by Head of National or Provincial Departments in accordance with the guidance by the DPSA, including Social Grant Payments|
|8||Birth and death certificates, and replacement identification documents|
|9||Essential municipal services|
|10||Care services and social relief of distress provided to older persons, mentally ill, persons with disabilities, the sick, and children|
|11||Funeral services, including mortuaries|
|12||Wildlife Management, Anti-poaching, Animal Care and Veterinary services|
|13||Newspaper, broadcasting and telecommunication infrastructure and services|
|14||Production and sale of any chemicals, hygiene products, pharmaceuticals for the medical or retail sector|
|15||Cleaning, sanitation, sewerage, waste and refuse removal services|
|16||Services related to the essential functioning of courts, judicial officers, the Master of the High Court, Sheriffs and legal practitioners required for those services|
|17||Essential SARS services defined by the Commissioner of SARS|
|18||Police, peace officers, traffic officers, military medical personnel and soldiers, correctional services officials and traffic management services|
|19||Postal services and courier services related to transport of medical products|
|20||Private security services|
|21||Air-traffic Navigation, Civil Aviation Authority, Cargo Shipping and dockyard services|
|22||Gold, gold refinery, coal and essential mining|
|23||Accommodation used for persons rendering essential services, quarantine, isolation and the lockdown|
|24||Production, manufacturing, supply, logistics, transport, delivery, critical maintenance and repair in relation to the rendering of essential services including components and equipment|
|25||Transport services for persons rendering essential services and goods, and transportation of patients|
|26||Services rendered by the Executive, members of Parliament, Members of the Provincial Legislature, Members of Local Councils, the Judiciary, traditional leaders and National Office Bearers. of Political Parties represented in Parliament|
|27||Commissioners of the South African Human Rights Commission, Gender Commission, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and the Public Protector and Deputy Public Protector|
|28||Transport and logistics in respect of essential goods to neighbouring countries.|
|29||Tow trucks and vehicle recovery services|
|30||Call centres necessary to provide health, safety, social support, government and financial services|
|31||Harvesting and storage activities essential to prevent the wastage of primary agricultural goods|
|32||Implementation of payroll systems to the extent that such arrangement has not been made for the lockdown, to ensure timeous payments to workers|
|33||Critical maintenance services which cannot be delayed for more than 21 days and are essential to resume operations after the lockdown.|
Annex B - List of Provincial SAPS Commissioners and limited list of attorneys
|Provincial SAPS Commissioners|
|Gauteng||Elias Mawela, Lt. Gen.
T: 011 274 7875
T: 011 274 7860
|North West||Baile Brenda Motswenyane, Lt. Gen.
T: 018 285 8073
T: 018 285 8069
|Western Cape||Sindile Christopher Mfazi, Lt. Gen.
(Acting Provincial Commissioner)
T: 021 417 7148
|Mpumalanga||Bethuel Mondli Zuma, Lt Gen
T: 013 762 4537
T: 013 762 4838
|Northern Cape||Risimata Peter Shivuri, Lt. Gen.
T: 053 839 2845
T: 053 839 2877
|Free State||Moeketsi David Sempe, Lt. Gen.
T: 051 507 6561
T: 051 507 6562
|Eastern Cape||Liziwe Ntshinga, Lt. Gen.
T: 040 608 8413
T: 040 608 8415
|Limpopo||Nneke Jim Ledwaba, Lt. Gen.
T: 015 290 6227
|Kwazulu Natal||Khombinkos Elvis Jula, Lt. Gen.
T: 031 325 6580
|Head: Marketing & Liaison Services||Oniccah Seemise, Gen. Major
T: 012 393 2916
M: 072 307 3079
|Corruption should be reported to Corruption Watch|
|T: 0800 023 456||https://www.corruptionwatch.org.za|
Yes, the official list was published in a government gazette on 25 March 2020.
Yes, in terms of amended regulations 11B(4A)(b) services in relation to international markets and which provide or maintain essential services as it relates to health, social support, government and financial services may be authorised by the cabinet members for health and trade and industry.