- Adami Geldenhuys
Covid-19 Regulatory Update 1-7 December 2021
Updated: Dec 13, 2021
Highlights in this edition refer to:
mandatory vaccination
gatherings
fake news
employment
alcohol bans
travel bans
ALCOHOL BANS
Beer Association of SA heads to court to review govt's Covid alcohol sales ban.
“The Beer Association of South Africa wants past bans declared irrational, invalid and set aside.”
COMMUNICATION
Research ICT Africa. Covid-1 9, pricing regulation and big player profitability.
“The policy brief examines the performance of the dominant mobile network operators in South Africa, MTN and Vodacom, by highlighting the data pricing transformation strategies adopted before and during the COVID-19 pandemic.”
CORRUPTION
AmaShabalala, Mawande. 'They stopped me from fighting corruption,' says axed health official.
“Former supply chain chief accuses Gauteng premier and SIU of making her a scapegoat after she raised alarm about PPE procurement processes.”
Charles, Marvin. Covid-19 corruption: Three Cederberg municipal officials arrested over PPE fraud.
Daily News notes statement issued by the SIU regarding public protector’s investigation.
“The Daily News has noted a statement published by the SIU on the South African government’s website acknowledging that it will be co-operating with the public protector’s investigation into PPE corruption at the embattled institution.”
Molosankwe, Botho. Bottles and bottles of expired sanitiser worth R12.7m discarded - Gauteng health dept reveals.
“The Gauteng health department has had to discard 141 000 half-litre bottles of expired sanitiser at a whopping cost of R12.7 million to taxpayers, MEC Nomathemba Mokgethi has revealed.”
EMPLOYMENT
See also: Vaccines: Mandatory Vaccinations
Democratised Transport Logistics & Allied Workers Union on behalf of Jacobs and Quality Express (2021) 42 ILJ 2334 (NBCRFLI)
Industrial Law Journal Preview Summary:
“The employee reported for work after he had tested for Covid-19 and while awaiting the results of his test. He was dismissed. In unfair dismissal proceedings before the NBCRFLI, the arbitrator found that, although the employer had no written rule or policy on Covid-19 protocols, the need to self-isolate was well established in society. Moreover, the employee had self- isolated previously while awaiting the outcome of a Covid-19 test, and was thus aware of the procedure. The arbitrator was satisfied that the employee’s act of reporting to work and exposing the workforce to risk constituted serious misconduct justifying dismissal.”
Jazbhay, Saber Ahmed. The difference between mandatory and compulsory.
“Compulsory signifies obligatory that is if vaccination is made compulsory by law you have no choice. Obey or disobey and there are consequences. That would run against the rights enshrined in the Bill of Rights to our constitution and would probably not pass constitutional muster and the principle of legality. Mandatory means that laws and regulations can be passed and enforced by the (public and or private) authorities for a specific rational objective Like to practice law I must be licenced by the Legal Practice Council even though I may have appropriate legal qualifications…”
Mogano vs St Mary's Children's Home [2021] 42 ILJ 2318 (CCMA)
Industrial Law Journal Preview Summary:
“At the time of the declaration of the national state of disaster the employer children’s home issued an instruction that, in order to protect the vulnerable children in its care, care workers would not be permitted to leave the premises on off days. Although the employee care worker initially abided by the instruction, she later insisted on taking leave and proceeded to do so after being instructed not to. She was dismissed and referred an unfair dismissal dispute to the CCMA. The commissioner found that the employee had disobeyed a rule that was valid and reasonable, and that her dismissal was justified.”
National Union of Metalworkers of SA on behalf of Manyika and Wenzane Consulting & Construction [2021] 42 ILJ 2341 (MEIBC)
Industrial Law Journal Preview Summary:
“The employee was dismissed for breaching the employer’s health and safety rules and endangering others by failing to wear a face mask in the workplace, having already been issued with a final written warning for the same offence. In unfair dismissal proceedings before the MEIBC, the arbitrator found that the employee had been trained on the Covid-19 protocols and was aware of the rule. His dismissal was therefore appropriate.”
Salt, Lauren and Gertzen, Jessie. Can employers require unvaccinated employees to take PCR COVID-19 tests regularly... at their own cost?
“Practically, how far can employers with mandatory vaccination policies go to ensure healthy and safe workplaces and to accommodate unvaccinated employees? Can employers require their unvaccinated employees to produce polymerase chain reaction (PCR) negative test results periodically… at their own cost? We discuss the key considerations for employers grappling with this question.”
Sliedrecht and Mathonsi [2021] 42 ILJ 2327 (CCMA)
Industrial Law Journal Preview Summary:
“The employee administrator for a medical doctor in private practice advised the hospital at which he had rooms that the doctor was exhibiting Covid-19 symptoms. She was dismissed for bringing the doctor’s name into disrepute and for breach of confidentiality. In unfair dismissal proceedings, the CCMA commissioner found that there was no evidence of actual or potential harm suffered by the doctor and that the doctor would have had to disclose his symptoms on arrival at work. Furthermore, the nature of the virus and the regulations was such that one had to disclose symptoms during the screening process in order to prevent transmission, and this was especially so in the medical profession. The employee had not breached any rule, and her dismissal was unfair.”
FAKE NEWS
Hyman, Aron. Covid-19 ‘fake news’ man walks free as magistrate slams prosecution.
“A Cape Town man arrested at the start of the Covid-19 pandemic last year for allegedly spreading fake news is off the hook after the state was told on Thursday to “get its house in order”.
The Cape Town magistrate's court struck the case from the roll after the state asked for a postponement as Stephen Birch was set to plead to the charges against him and start his trial.”
GATHERINGS
Govender, Prega. To rage or not to rage, that is the vaxxing question.
“Two of the country’s most influential educational associations have called for the postponement or cancellation of the matric rage festivals amid concerns over the new Covid-19 variant, Omicron.”
Mntambo, Nokukhanya N. Plett Rage cancelled for second year running.
Rall, Se-Anne. Ballito Rage 2021 cancelled after 36 test positive for Covid-19.
INSURANCE
Dinnie, Donald. Covid-19 business interruption insurance claims and direct physical damage (USA): Part 1.
2021 Dec 6 Financial Institutions Legal Snapshot
The Inns By The Sea v California Mutual Insurance Company (Super. Ct. No. 20CV001274) is discussed.
“In summary, the court said that despite the insured’s allegations that the Covid-19 virus was on its premises it had not identified any direct physical damage to property that caused it to suspend its operations. The claim was denied on that basis.”
Dinnie, Donald. COVID-19 business interruption insurance claims and suspension due to direct physical loss (USA): Part 2.
2021 Dec 7 Financial Institutions Legal Snapshot
“The Californian Court of Appeal in this judgment… also considered whether the insured’s business was suspended due to direct physical loss of its property. The policy required suspension of operations caused by direct physical loss of property. The insured argued that regardless of the physical presence of the Covid-19 virus, it had adequately claimed direct physical loss by alleging “loss of use, function, and value of its property”.”
Dinnie, Donald. Covid-19 business interruption claims and rental remission.
LOCKDOWN
Lockdown on the cards? Ramaphosa calls urgent NCCC meeting.
“The NCCC will convene an urgent sitting as soon as President Ramaphosa returns from his West African tour.”
MEDICAL NEGLIGENCE
Al-Khalidi, Suleiman. Jordan court jails health officials over Covid-19 oxygen deaths.
“The court found the former director of the state hospital in Salt, a city west of the capital Amman, and four of his senior aides responsible for the deaths, the media said. The patients, who were being treated in the hospital, died in March when staff failed to act after oxygen ran out in a Covid-19 ward for nearly an hour.”
SANDF
Deklerk, Aphiwe. Sahpra orders military to return illegally purchased Cuban drug.
“The SA Health Products Regulatory Authority (Sahpra) says it will destroy 970,000 vials of the drug Heberon purchased by the SA Defence Force for R215m last year. This was revealed by Sahpra CEO Boitumelo Semete-Makokotlela during a parliamentary committee meeting on Wednesday morning.”
TAXI INDUSTRY
Disaster Management Act 57 of 2002
Directions: Taxi relief fund towards impact of Coronavirus COVID-19.
TOURISM
Shange, Naledi. Rules for events, venues and tourist sites amid Covid-19 gazetted.
Tourism Act 3 of 2014
Norms and Standards for the Safer Operations of Tourism Sector in the context of the Coronavirus Covid-19 and Beyond.
GenN696 GG 45568 p232 03Dec2021
TRAVEL BANS
Hunter, Qaanitah. Ramaphosa slams West for 'vaccine apartheid' and travel bans, while EU cautions against 'dramatic statements'.
News24Wire. Stop acting like former colonisers, Ramaphosa tells African countries that imposed travel bans.
“President Cyril Ramaphosa says African countries should not act like former coloniser countries by imposing unscientific travel bans after the discovery of the Omicron variant of the virus that causes Covid-19.”
SA travel ban update: Japan and Malaysia harden borders, Uzbekistan joins in.
VACCINES
Attacks on Vaccination Teams
Gauteng Health Department condemns recent attacks on vaccination teams.
“In the latest incident, five armed men robbed healthcare workers at gunpoint in Tshwane on Saturday night at a pop-up vaccination site in Soshanguve.”
Distribution
Byanyima, Winnie. Unfair global vaccine distribution has failed Africans — it’s vital we do it for ourselves.
Hesitancy
De Vos, Pierre. On rage, distrust and Covid-19 lockdowns: why vaccine hesitancy is irrational but not incomprehensible.
2021 Dec 3 Constitutionally Speaking
Mandatory Vaccinations
Anglo American to introduce mandatory vaccinations, other corporates move quietly.
FEDUSA NEC to meet to discuss mandatory COVID-19 vaccinations.
Gillett, M. Tyler. Federal court blocks healthcare worker vaccine mandate in 10 states.
“A federal district court in Missouri Monday issued a preliminary injunction halting the Biden administration’s vaccine mandate for health care workers in 10 states.”
Jazbhay, Saber Ahmed. Experts say government's possible introduction of mandatory vaccination won’t violate basic human rights.
Looking to the government for leadership on vaccines, now.
2021 Dec 5 TimesLive (Subscription Needed)
“The emergence of the Omicron Covid-19 variant and SA’s slow progress in administering vaccines to the population have brought the controversial question of mandatory vaccines to the fore. An increasing number of private-sector companies are making vaccines compulsory for all staff, and there has been a big push from the scientific community for vaccines to be made compulsory for people attending public events…”
Mandatory Covid-19 vaccines for domestic workers and gardeners in South Africa – what you should know.
Marrian, Natasha [et.al]. Omicron ultimatum: the end of lockdowns and beginning of mandates.
2021 Dec 2 Business Live (Subscription Needed)
Nelson, Greg. President Ramaphosa expects update from vaccine mandate task team on Wednesday.
Sibanda, Omphemetse S. A constitutional duty: The case for mandatory vaccination.
Showdown over mandatory Covid-19 vaccines in South Africa.
South Africa to introduce mandatory vaccine policy in early 2022: report.
“South Africa, which is contending with a massive upsurge in coronavirus infections following the onset of the omicron variant, is readying a mandatory vaccine policy and is set to implement it early next year, a senior labor union official said. Broad agreement has been reached on the policy in the National Economic Development and Labor Council, a negotiating forum, although some details have yet to be ironed out. The Congress of South African Trade Unions, the country’s biggest labour group, which initially opposed forcing people to get inoculated, has now joined business groups in backing the move.”
Webber Wentzel Attorneys. A response, based on the actual law, to Panda’s copy-and-paste letter for workers who wish to not disclose their vaccination status.
Passports
Vaccine passports may start in early 2022.
“Passport system is expected to restrict access to public services and places of employment and will not involve forced vaccination”
Date posted: 7 December 2021