Covid-19 Regulatory Update: 8-14 December 2021
Please note that this is the final edition of the Lexinfo Covid-19 Regulatory Update for 2021. The next edition will be published on 11 January 2022, and will include all relevant information published since those in this issue, dated 8 – 14 December 2021.
We thank you for your support of our services during this past year. Best wishes for a peaceful festive season and a prosperous and healthy new year.
Highlights in today's edition include:
the extension of the national state of disaster to 15 January 2022;
the approval of the Pfizer booster by SAHPRA;
the dismissal of Vinpro’s challenge relating to the constitutionality and lawfulness of the liquor bans;
plans to approach the Constitutional Court to decide on the vaccine mandate issue;
recommendations on the Covid-19 grant;
and new international books relating to PPE procurement, contractual performance, and human rights.
Constitutionality and lawfulness of nation-wide liquor bans imposed by national government during Covid-19 pandemic – constitutional values of respect for rule of law – inter-governmental co-operation – public accountability – whether power to impose liquor ban fell within provincial sphere and not within national government sphere (structure of government argument) – Constitution of the Republic of South Africa, 1996 s 44(3) and Schedule 4 – Disaster Management Act 57 of 2002 – respondents authorised to make regulations 88 and 44 as they fell under Schedule 4 as part of disaster management or trade, alternatively, that national respondents authorised by section 44(3) to infringe on exclusive legislative competence pertaining to liquor licence as set out in Schedule.
Western Cape High Court dismisses COVID-19 regulations liquor ban challenge.
“Cooperative Governance and Traditional Affairs (COGTA) Minister, Dr Nkosazana Dlamini Zuma has welcomed the Western Cape High Court judgment dismissing wine producers’ body, Vinpro’s challenge of the constitutionality and lawfulness of liquor bans imposed during the COVID-19 pandemic.”
“On Monday 13 December 2021, the Competition Commission (“the Commission”) and the third largest private laboratory, Dietrich, Voigt, MIA & Partners and Dr. Vermaak Incorporated (‘’Pathcare”) concluded a settlement agreement in terms of which Pathcare agreed to reduce its Covid-19 PCR test prices from about R850 to no more than R500 (VAT inclusive) per test with immediate effect. This settlement agreement is subject to the approval of the Competition Tribunal. The Pathcare settlement agreement comes at the back of an official announcement by the Competition Commission that two other major laboratories, Ampath and Lancet Laboratories, have agreed to substantially reduce the price of COVID-19 PCR tests with immediate effect.”
Rose, Rob. All of a sudden, the labs can afford to slash Covid test prices by 41%.
“Given how much money South Africans have paid these labs in recent months, many wonder why it took the Competition Commission so long to act.”
Schwarz, Franz [et al.] Contractual Performance and COVID-19: An In-Depth Comparative Law Analysis. – Kluwer Law International, 2021.
Publisher’s summary: “The book examines under what circumstances COVID-19-related impediments may excuse contractual performance or lead to modification or termination of the affected contractual obligations in twelve representative civil and common law jurisdictions – the United States, England and Wales, Singapore, Brazil, Germany, France, Switzerland, Austria, Hong Kong, Costa Rica, China, and Russia. For each country, the book examines the following aspects in depth:
• the relevant fundamental legal principles
• the various legal emergency valves available to an obligor to respond to COVID-19-related events
• any remedies available to the obligee
• selected examples for specific government measures related to particular types of contracts (e.g., construction, employment, lease agreements), and
• how the legal framework applies in typical factual scenarios”
Price: £300.00. View order information here.
Maphanga, Canny. State recovers R111m stolen from UIF's Covid-19 relief scheme through forfeiture proceedings.
Masondo, Sipho. Top cop looking into PPE procurement 'definitely' poisoned - files, laptop 'removed' after his death.
Payne, Suné. ‘A crime against humanity’: Alleged corrupt PPE contracts worth R14.8bn under investigation, Parliament told.
“The Presidency has received the final report of the Special Investigating Unit (SIU) into allegations of corruption by parties in the public and private sectors in the procurement of personal protective equipment at the onset of the COVID-19 pandemic.
The Presidency is studying the report and will keep the public abreast of developments in this matter.”
Sadike, Mashudu. Special Investigating Unit refers ‘invalid’ Limpopo PPE tenders to law enforcement.
“The Special Investigating Unit (SIU) has referred 33 criminal cases to law enforcement agencies for prosecution in relation to a R25 million personal protective equipment (PPE) contract awarded by the Limpopo Department of Health.
The Pretoria News has reliably learnt that the unit also sent a letter to MEC Dr Phophi Ramathuba demanding clarity about the matter.”
Disaster Management Act 57 of 2002
Directions regarding the reopening of schools and measures to address, prevent and combat the spread of COVID-19 in the National Department of Basic Education, and Provincial Departments of Education, and all schools in the Republic of South Africa published in GenN42 in GG 44154 of 12 February 2021 as amended to provide guidelines to officials, educators and administration staff who are marking examination scripts and performing other functions related to the finalisation of the results of May/June and October/November examinations and the release thereof.
Israelstam, Ivan. Covid complicates absenteeism problem.
Jacklin-Levin, Vanessa and Smerdon, Robyn. COVID-19 and the development of law in South Africa.
Mandatory vaccination policies allowed; Proposed amendments to the Employment Equity Act; Labour Court upholds dismissal of employee who knowingly came to work after exposure to COVID-19.
EXTENSION OF NATIONAL STATE OF DISASTER
Disaster Management Act 57 of 2002
Extension of National State of Disaster (Covid-19) to 15 January 2022.
Dludla, Siphelele. SA hospitality industry fears jobs bloodbath as government mulls lockdown over the festive season.
HUMAN RIGHTS AND SECURITY
Stanford, Ben; Foster, Steve and Berdud, Carlos Espaliu (eds.) Global Pandemic, Security and Human Rights: Comparative Explorations of COVID-19 and the Law. – Routledge, 2021.
Partial contents: Human rights and security in the COVID-19 era – Theoretical and practical challenges for human rights – COVID-19 and constitutional tensions: Conflicts between the state and the governed –
Human rights in times of emergency: COVID-19 taking the United Kingdom into uncharted territory – 2020: Human rights in Spain or the end of a legal guarantee? A constitutional crisis – Managing a pandemic: The securitisation of health and the challenge for fundamental freedoms –
Guaranteeing migrants’ rights in a time of pandemics: The Portuguese exception – Threats to Personal, Collective and Global Security
– Tax in reverse: Financial support and social security during COVID-19 –
Subjects of surveillance: Human security and law in the wake of COVID-19 – The future of the European Strategy for Data: Impact analysis from the COVID-19 pandemic – Analysing the use of technology in the fight against COVID-19: A look at China, Taiwan, South Korea, Iceland and Israel from the perspective of ‘Technologies for Freedom’ Dr Alberto Priego – Virus-laden ships: International rights and obligations of coastal states regarding foreign cruise ships feared to be carrying an infectious disease – The New Cold War and the (uneven) implications of COVID-19 for international security: The cases of Italy and the UK.
Order information available here.
Expect some lockdown restrictions in South Africa this week: economists.
“While the president initially had no intentions to address the nation, he might be forced to make several adjustments to the lockdown before the start of the festive period on Thursday, sources within the presidency told the newspaper.
Specific concerns have been raised around the high number of gatherings that are expected to take place over the festive break, with reduced numbers at gatherings being considered.”
Felix, Jason. Acting president Mabuza to chair NCCC meeting on Tuesday - but no clarity yet on 'family meeting'.
Arrowsmith Sue [et al.] Public Procurement in (a) Crisis: Global Lessons from the COVID-19 Pandemic. – Hart Publishing, 2021.
Public Procurement in (a) Crisis: Introduction – Perspectives on Public Procurement Regulation and Policy – Regulating Emergency Procurement: Appraising the Approach of the UNCITRAL Model Law in the Light of COVID-19 – Recommendations for Addressing Urgent Procurement under the EU Directive and WTO Agreement on Government Procurement: COVID-19 and Beyond – Effective Single Source Procurement in the Emergency Context: Policy Issues – Constructing Remedies to Deal with Emergency Procurement – The EU's Joint Procurement Initiative in the Light of COVID-19 – Related Regulatory Perspectives – Competition Policy in Relation to Public Procurement: An Essential Element of the Policy Framework for Addressing COVID-19 and Its Aftermath – The Trade and Government Procurement Policy Nexus: Before and After the COVID-19 Pandemic – The Rise of Resilience in Addressing COVID-19 Procurement Challenges: The Impact of International Trade Instruments on Countries' Freedom of Action – Development Perspectives – Legal Aspects of the Procurement and Distribution of Critical COVID-19 Supplies by International Organisations: UNOPS – Procurement and Distribution of Critical COVID-19 Supplies by International Organisations: The World Bank – Procurement and Distribution of Critical COVID-19 Supplies: The Experience of USAID – The Procurement of a COVID-19 Vaccine in Developing Countries: Lessons from the 2009-H1N1 Pandemic – Country Studies – Emergency Procurement and Responses to COVID-19: The Case of Italy / United Kingdom / USA / Brazil / Colombia / Singapore / China – Emergency Procurement and Responses to COVID-19 in Africa: The Contrasting Cases of South Africa and Nigeria – Beyond the Pandemic – Emergency Procurement: The Role of Open Data and Big Data
– Public Procurement in (a) Crisis: Lessons and Reflections in the Light of COVID-19.
Price: £95.00. Order information available here.
SOCIAL RELIEF GRANT
Mkhwanazi, Siyabonga. More than 214 000 grants paid to dead beneficiaries.
“Social Development Minister Lindiwe Zulu has revealed that more than 214 000 social grants were paid out to people who had died. Another 59 000 people were paid the R350 social relief of distress (SRD) grant after they died in the last few months.”
Nkosi, Nomazima and Dlamini, Penwell. Government urged to consult on social relief grant.
“A team of leading experts released a technical report outlining how the government can provide income support to unemployed residents through the social relief of distress grant.”
Sonjica, Nomahlubi. Institutionalise and extend Covid-19 grant, says panel of experts.
Battleground set for mandatory vaccines in South Africa.
“South Africa’s Constitutional Court is set to be one of the critical decision-makers around introducing mandatory Covid-19 vaccines in South Africa, with several groups announcing plans this week to approach the country’s apex court for clarity. The South African Federation of Trade Unions (Saftu) says it will embark on a mass campaign to encourage workers to vaccinate, but opposes the introduction of vaccine mandates at workplaces and other sites.”
Dis-Chem gets tough on unvaccinated employees.
“Pharmacy retailer Dis-Chem Group is the latest JSE-listed corporate to implement a vaccine mandate for its employees. In a hard-hitting letter to staff, it says it has “made the difficult but necessary decision to make Covid-19 vaccinations a requirement across the group” by February 1, 2022.
It says all employees who are not fully vaccinated by this date “will be required to:
• Provide a negative antigen test, every Monday. The test must be taken before you enter any Dis-Chem facility.
• Wear an N95 mask at all times.
• Both of these will be at the employees [sic] cost.”
Dludla, Siphelele. Nedlac eyes the court over mandatory Covid-19 vaccines in the workplace.
“The National Economic Development and Labour Council (Nedlac) will be approaching the Constitutional Court early next year seeking a declaratory order enforcing mandatory Covid-19 vaccines in the workplace.
Do South African businesses have to accommodate employees who refuse to get vaccinated?
“While employers in South Africa are entitled to implement a mandatory vaccination policy for certain categories of employees, they will need to tread carefully when implementing these rules, say legal experts at law firm Bowmans.”
Govt not joining mandatory vaccination legal battle.
Guide to implementing a mandatory vaccination policy in the workplace.
Jazbhay, Saber Ahmed. Mandatory vaccination (Canada).
Case discussed: Blake v. University Health Network, 2021 ONSC 7139 (CanLII).
“Canadian labour court judgment rejecting injunction against mandatory vaccination. Simply put inferentially refuse to be vaccinated and you will, after due process, get dismissed.”
Malinga, Gcinokuhle. NEASA to challenge mandatory blanket vaccination in workplace.
Masweneng, Kgaugelo. Business Unity SA clarifies its position on legal action on Covid-19 vaccines.
Mboto, Sibusiso. Christian group sues over mandatory Covid-19 vaccination.
“While the National Economic and Labour Council has expressed support for mandatory Covid-19 vaccination, the South African National Christian Forum (SANCF) says it will maintain its opposition, saying the move infringes on the constitutional rights of people.”
Sibanda, Omphemetse S. Vaccine mandate issue heads for the Constitutional Court in key test of public health rights.
“Several interest groups, including unions and human rights bodies, have announced plans to approach the court for clarity on the matter. Interestingly, the state seems to be disinterested in joining the battle before the apex court, according to some reports. However, the state should be acutely aware of its constitutional duty in the debate that is raging about key constitutional rights which might arguably be constrained by a vaccine mandate; namely, the right to bodily integrity (Section 12); the right to practice any profession, or carry on any occupation, trade or business (Section 22); and the inherent dignity and the right of everyone to have their dignity respected and protected (Section 10).”
Slater, Donna. Busa corrects Nxesi on mandatory vaccination declaratory order stance.
“Business Unity South Africa (Busa) disputes a December 7 claim by Employment and Labour Minister Thulas Nxesi that it has approached the Constitutional Court seeking a mandatory vaccination declaratory order. Nxesi claimed during the National Economic Development and Labour Council’s yearly summit that government supported Busa going to the Constitutional Court to get a declaratory order.”
Kruger, Phillip. COVID-19: Vaccination status and data privacy: The rights of individuals.
“[I]t is certainly conceivable that we may see legislation in South Africa take a more concrete stance on the vaccination status of individuals… However, until a more concrete stance is taken up in legislation, employers would be well advised to apply strict adherence to the provisions of POPIA when collecting, processing and disseminating their employees' vaccination status, and to encourage their employees, as a matter of social policy, to battle the COVID-19 pandemic by being vaccinated.”
Download the .pdf version of the Covid-19 Regulatory Update: 8-14 December 2021 here below.
Date posted: 14 December 2021