11 April 2022 by and Employment Law Alert

Applicability of Regulation 69 of the Transitional Regulations to the workplace

With effect from midnight of 4 April 2022, the National State of Disaster ended, and all regulations and directions made in terms of section 27(2) of the Disaster Management Act 57 of 2002 (DMA) were repealed with immediate effect, save for a few transitional provisions which will automatically terminate 30 days after the end of the National State of Disaster (Transitional Regulations). One of the Transitional Regulations, particularly, Regulation 69, pertains to gatherings and the limitations related thereto.

In terms of Regulation 69 (1) and (2), all gatherings are limited as follows:

  • where those in attendance are vaccinated or in possession of a negative COVID-19 test no older than 72 hours: the venue may not exceed 50 percent capacity with strict adherence to all health and safety protocols; and
  • where those in attendance are unvaccinated or not in possession of a negative COVID-19 test no older than 72 hours: the gathering is restricted to 1000 persons or less for indoor venues and 2000 persons or less for outdoor venues unless the venue is too small to hold the prescribed numbers while observing social distancing of 1 metre, in which case the 50 percent capacity rule will apply.

Furthermore, in terms of Regulation 69(4), gatherings at a workplace are permitted, provided all health and safety protocols are adhered to.

Does the limitation on gatherings set out in Regulations 69 (1) and (2) apply to the workplace? Are employers limited in relation to the number of employees who are permitted to attend to the workplace based on whether employees are vaccinated or in possession of a negative COVID-19 test?

Chapter 1 of the Regulations published on 24 April 2020 defines a gathering as:

“Any assembly, concourse or procession in or on:

any public road, as defined in the National Road Traffic Act, 1996 (Act No. 93 of 1996); or any other building, place, or premises, including wholly or partly in the open air, and including, but not limited to, any premises or place used for any sporting, entertainment, religious, or cultural purpose; but excludes a workplace and a place of residence for those persons ordinarily residing at the residence[.]”

Under this definitional framework, which has since been repealed, a workplace was not included in the definition of a gathering, hence Regulation 69(4) prescribed a specific carve-out for the regulation of gatherings at the workplace for work purposes. However, even under that framework, Regulation 69(4) appears to have applied only to gatherings for work purposes, and any other gatherings in the workplace might have been regulated under different frameworks.

Although the definition of “gathering” was last provided in April 2020, what sets these Transitional Regulations apart from every other set of regulations since 2020 (which kept the previous regulations intact subject only to certain amendments) is that the Transitional Regulations repealed all prior provisions, save for the transitional provisions. Accordingly, the definitions clause fell away once the National State of Disaster ended. Consequently, on a reading of the Transitional Regulations as they now stand, the ordinary meaning of the term “gathering” will be preferred over the more technical meaning which no longer operates.

In addition, section 12(2)(b) of the Interpretation Act 33 of 1957 provides that where a law repeals any other law, unless the contrary intention appears, the repeal shall not affect the previous operation of any law so repealed or anything unduly done or suffered under the repealed law. Although this provision generally applies to retroactivity (see Hewitt v S [2016] 3 All SA 784 (GJ) and Malcolm v Premier, Western Cape Government N.O. (207/2013) [2014] ZASCA 9), an argument could be made that “previous operation” includes the way a statute applied, including its scope and definition. This could mean that absent a specific intention to change the scope or definition in the repealing statute, the way in which the statute or provisions thereof previously operated remains in force, subject to any new specifications. Of course, this argument also suffers from the possibility that the repeal of the definitions clause without any replacement in this case essentially indicated intention to dispense therewith, such that all remaining provisions will henceforth be granted their ordinary meaning.

In essence, the Transitional Regulations are still clear that, at a minimum, gatherings in the workplace for work purposes are allowed, subject to strict adherence to all health protocols and social distancing measures. But since the bar on the definition of gatherings no longer exists, there is no reason why the same provisions in Regulations 69(1) and (2) do not also apply to the workplace. Indeed, the objective of those provisions is rooted on a health and safety rationale, and it would make no sense, fundamentally, to exclude workplaces therefrom.

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