The COVID-19 pandemic in South Africa - Nicola Smit & Elmarie Fourie - CIELO laboral
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The COVID-19 pandemic in South Africa
Nicola Smit & Elmarie Fourie
In South Africa, the COVID-19 pandemic was declared a national disaster in terms of section 27(1)
of the Disaster Management Act (DMA).1 The government imposed a national lockdown, which
entailed the restriction of the movement of persons and goods including confining all persons to
their places of residence unless strictly for the purpose of performing essential services, obtaining
essential goods or services, collecting a social grant or seeking emergency medical attention. 2 The
government introduced a five-level alert system to manage the gradual easing of the lockdown and
to determine the level of restrictions to be applied. The Directions issued in terms of Regulation
3(3), issued under section 27(1) of the DMA, adjust the limitations in accordance with the
prevailing level of alert. The country was on adjusted alert level 3 from 29 December 2020, but
Level 1 came into effect on 1 March 2021. The Minister of Cooperative Governance and
Traditional Affairs (COGTA) has issued a series of temporary regulations relating to COVID-19,
setting out the different restrictions imposed during each alert level.
The South African government imposed one of the strictest lockdowns worldwide and this was
accompanied by targeted social grants and/or temporary relief schemes. 3 The Social Relief of
Distress (SRD) grants involved a grant of R350 per month (first payable from May until October
2020) but it was extended until 15 March 2021. Citizens outside the conceptual framework of
employee could benefit from this grant, if they were unemployed, however the value of the grant is
much lower than the benefits received by employees from the Unemployment Insurance Fund (UIF)
or UIF-TERS and therefore inadequate to alleviate poverty. 4 Workers in the informal economy who
are not South African citizens could not benefit from this grant and remain vulnerable. 5 In February
2021, more than 40 000 people have cancelled their distress grant as their situations have
improved.6 However, more than 65 000 new applications were received. 7
Restrictions were also placed on evicting a person from their land or home, or demolishing their
place of residence, during the national state of disaster.8
1 57 of 2002, the Act and Regulations, Guidelines And Relief - SA Corona Virus Online Portal and South African COVID-19
Regulations - Open By-laws South Africa.
2 Government Gazette 11062 (25 March 2020); these strict restrictions constituted alert level 5.
3 Disaster Management Act: Social development directives | South African Government (www.gov.za).
4 Disaster Management Act: Regulations to address, prevent and combat the spread of Coronavirus COVID-19: Amendment | South
African Government (www.gov.za) and SASSA https://www.sassa.gov.za/Pages/COVID-19_SRD_Grant.aspx.
5
SASSA https://www.sassa.gov.za/Pages/COVID-19_SRD_Grant.aspx. Other requirements included, that the recipients did not
receive any other grant or benefit because of COVID-19.
6 https://www.news24.com/news24/southafrica/news/social-relief-of-distress-grants-more-than-40-000-cancel-more-than-65-000-
new-applications-20210226.
7 Ibid.
8 Clause 37(1) of Disaster Management Act: Regulations: Alert level 3 during Coronavirus COVID-19 lockdown | South African
Government (www.gov.za) - unless a competent court has granted an order authorising the eviction or demolition. Clause 38
1The Regulations issued under the DMA, contains provisions on the operation of the economic
sector. By 28 February 2021, businesses may operate, except for some expressly listed and with
special conditions in published “hot-spot areas”.9 All relevant health protocols and social distancing
measures must be adhered to. These are set out in the general directions as well as the occupational
health and safety directions. Sector-specific health protocols are also applicable and may address
matters such as “work rotation, staggered working hours, shift systems, remote working
arrangements, special measures affecting persons with greater vulnerabilities” and similar measures
to “achieve social distancing, protect employees or limit congestion in public transport and at the
workplace”.10
A Consolidated COVID-19 Direction on Health and Safety in the Workplace was published in June
2020.11 This Direction added to the guidelines that the Department of Employment and Labour first
issued for employers,12 which urged employers to apply the prescriptions of the Hazardous
Biological Agents Regulations to all workplaces where workers could potentially be exposed to
Covid-19.13 The guidelines also made a series of recommendations on safe workplace practices
including that employees should regularly wash hands or make use of “alcohol-based hand rubs”. 14
The guidelines also indicated that employers are obligated to provide their workers with the
necessary personal protective equipment (PPE) required to reduce the risk of contracting Covid-19
in the workplace, something that has proved a challenge in the public health sector. In National
Education Health and Allied Workers Union (NEHAWU) obo Members Providing Essential
Services v Minister of Health,15 the applicant alleged that the Minister of Health failed to provide
health workers with PPE and to issue guidelines for the use of PPE. The applicant sought relief by
declaring that it was unlawful to take disciplinary action against the applicant’s members for their
refusal to wear PPE and that the Minister of Labour be directed to exercise his powers, in terms of
section 21 of the OHSA, which prohibits performance or duties that endangers the health and safety
of employees. Whitcher J held that the union failed on the “totality of the evidence” to establish
that, at the time it launched its application, there was a shortage of PPE at public health facilities. 16
Similarly, it was held that the “court cannot grant a global ruling that employers cannot take
disciplinary action against NEHAWU’s members who refuse to treat patients because in their
opinion they do not have appropriate PPE.” 17 Frontline health workers, however, remain concerned
about the quantity and standard of available PPE.
provides (with protections afforded by the Rental Housing Act, 1999) that during the national state of disaster, certain conduct is
presumed to be unfair conduct.
9 Disaster Management Act: Regulations: Alert level 3 during Coronavirus COVID-19 lockdown | South African Government
(www.gov.za), art 45 and table 2: “All persons who are able to work from home must do so. However, persons will be permitted to
perform any type of work outside the home, and to travel to and from work and for work purposes under Alert Level 3, subject to-
…; and (d) the work not being listed under the specific exclusions in this Table.”
10
Clause 45.4. Public transport is expressly regulated in clause 43 of the Regulations.
11 Government Gazette 43400 (4 June 2020), Disaster Management Act: Measures to prevent and combat the spread of Coronavirus
COVID-19 in Health: Amendment | South African Government (www.gov.za).
12 The Department of Employment and Labour “Workplace Preparedness: COVID-19 (SARS-CoV-19 virus)” 17 March 2020
available online at http://www.labour.gov.za/DocumentCenter/Publications/Occupational%20Health%20and%20Safety/COVID-
19%20Guideline%20Mar2020.pdf. The Consolidated Directive must also be read in addition to the COVID-19 Direction on Health
and Safety in the Workplace issued by the Minister in terms of Regulation 10(8) of the National Disaster Regulations GN 479 in GG
43257 (29 April 2020) and the general duties imposed on employers and employees by the Occupational Health and Safety Act
(OHSA), Occupational Health and Safety Act | South African Government (www.gov.za).
13
The Department of Employment and Labour “Workplace Preparedness 1.
14
The Department of Employment and Labour “Workplace Preparedness 9.
15 National Education Health and Allied Workers Union (NEHAWU) obo members providing essential services v Minister of Health
and Others (J423/20) [2020] ZALCJHB 66; 2020 (6) BCLR 767 (LC); (2020) 41 ILJ 1724 (LC); [2020] 8 BLLR 788 (LC) (11 April
2020) (saflii.org).
16 par 48.
17 par 56.
2The Consolidated Directive of June 2020 applied to all workplaces where resumption of economic
activities had been permitted other than a workplace excluded from OHSA or subject to a Directive
by another Minister.18 Employers with less than 10-employees were exempt from compliance with
all provisions other than clause 46. 19 Clause 46 requires that an employer permitted to recommence
operations must “develop a basic plan for the phasing in the return of its employees taking into
account those that are able to work remotely and those over the age of 60 years or who have
comorbidities” as well as other requirements regarding social distancing, isolation, reporting of
illness, provision of protective wear and sanitizers, the regular disinfection of workstations, and
where the public has access to the workplace, other appropriate measures.
The Directive also afforded an employee the right to refuse any work if circumstances arise “which
with reasonable justification appear to that employee or to a health and safety representative to pose
an imminent and serious risk of their exposure to COVID19”.20
Over and above the requirement for all employers to undertake a risk assessment and to develop a
Workplace Plan, outlining the protective measures in place for the phased return of employees, the
Consolidated Directive of October 2020 requires that an employer’s Workplace Plan must also
include a description of the procedure to be followed to resolve any issue that may arise from the
exercise by an employee of the right to refuse to work in the circumstances contemplated in clause
14(1). In addition, the Revised OHS Consolidated Direction requires employers to inform the
Compensation Commissioner whenever a worker has been diagnosed with COVID-19 at the
workplace, in accordance with the Directive on Compensation for Workplace-acquired Novel
Corona Virus Disease of 23 July 2020.
The Consolidated Directive now allowed a worker, who had moderate or severe illness, who has
tested positive for Covid-19 to return to work provided that s/he has completed the mandatory 14
days of self-isolation; a medical evaluation confirmed fitness to work and “the employer ensures
that personal hygiene, wearing of masks, social distancing, and cough etiquette is strictly adhered to
by the worker; the employer closely monitors the worker for symptoms on return to work; and the
worker wears a surgical mask for 21 days from the date of diagnosis.” 21
The Minister of Employment and Labour issued another directive on the 23 July 2020 22 to address
specific concerns regarding compensation for workplace-acquired Covid-19.23 The directive
clarified that where an employee contracts Covid-19 in the workplace s/he will be eligible to claim
temporary total disablement from the Compensation Fund 24 for a period of up to 30 days.25
However, unconfirmed cases, where self-isolation or self-quarantine is applicable, is not covered by
the Compensation Fund,26 and would instead be covered by the Temporary Employee/Employer
Relief Scheme (TERS). 27
18 Clauses 13 and 14 of the Direction by the Minister of Employment and Labour in terms of Regulation 4(10).
19 Clause 15 of the Direction by the Minister of Employment and Labour in terms of Regulation 4(10).
20 Clause 48 of the Direction by the Minister of Employment and Labour in terms of Regulation 4(10).
21 Clause 28 of the Direction by the Minister of Employment and Labour in terms of Regulation 4(10).
22 Direction by the Minister of Employment and Labour in terms of Regulation 4(10) of the Regulations R480 of 29 April 2020
Compensation for Occupational Injuries and Diseases Act: Directive: Compensation for workplace acquired Novel Coronavirus
COVID-19 disease | South African Government (www.gov.za).
23 Preamble ibid.
24 Clause 5 ibid.
25 Clause 5.1.2(a) ibid.
26 Clause 5.1.1 of the Direction by the Minister of Employment and Labour in terms of Regulation 4(10) of the Regulations R480.
27 Clause 5.1.1 ibid.
3This position was followed by a new Consolidated Directive on workplace safety published on 1
October 2020.28 The Consolidated Directive again exempted employers with less than 10
employees from the majority of its provisions. 29 The special reporting obligations would now apply
to all employers with more than 50 employees (rather than 500 employees). 30 The provisions
regarding the obligations of an employer were again all retained in virtually identical terms. 31
However, the provisions regarding the return to work of an employee who had tested positive for
Covid-19 were again amended. The latest and current directive provides that an employer may
allow such an employee to return to work “without requiring viral testing if the worker has
completed the mandatory 10 days of isolation either from the onset of symptoms in mild cases of
infection (not requiring hospitalisation for COVID-19) or in moderate to severe cases of infection
(requiring supplemental oxygen or hospitalisation) from the date of achieving clinical stability” or
earlier if a medical evaluation determined that the worker is fit to return to work. 32
On 26 March 2020, a Directive called “Covidl9Temporary Employee/Employer Relief Scheme
(C19 TERS)” was gazetted. 33 During lockdown, non-essential companies unable to operate
normally,34 affecting employees. Where employees are compelled to take leave with a likely loss in
income employers are encouraged to continue paying employees, but where it is not economically
feasible to do so, the special benefit under the UIF became operative. Although this benefit is very
limited in scope, it is the main employment related relief measure available to companies and their
workers. Several requirements 35 were linked to this benefit and it only applies where an “employer
as a direct result of Covid -19 pandemic close its operations for a 3 (three) months or lesser period
and suffer financial distress”.36 Although administered by the UIF, the benefit is de-linked from the
normal qualifying criteria of the UIF. 37 The benefits are payable for the cost of salary of employees
only, capped to a maximum amount of R17 712.00 per month, per employee. 38 The income
replacement sliding scale may not result in an employee being paid less than the minimum wage in
the sector concerned. 39 TERS also provided an illness benefit for an employee where both the
employer and the employee submit confirmation that the employee was “in an agreed pre-
cautionary self -quarantine for 14 days.”40
In South Africa, COVID-19 once again highlighted the inequalities in our society and the
vulnerabilities of precarious workers. For workers included in the definition of employee under the
28 Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces GN R.1031 in GG 43571, Labour
Relations Act: Consolidated direction on occupational health and safety measures in certain workplaces | South African Government
(www.gov.za). The issue of this directive also saw the withdrawal of the directive issued on 4 July 2020.
29 Clause 2(3) of the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (n 28) above.
30
Clause 4(1)(a) ibid.
31 Clauses 5 and 7 ibid.
32 Clauses 6(4) ibid.
33
Disaster Management Act: Directive: Coronavirus Covid19 Temporary Employee / Employer Relief Scheme | South African
Government (www.gov.za), Government Gazette 43161 (26 March 2020. The application of TERS was extended to specific sectors
not fully operational (tourism, hospitality and the liquor industry) to 15 March 2021.
34 In Guardrisk Insurance Company Limited v Café Chameleon CC [2020] ZASCA 173 (17 December 2020) the Supreme Court of
Appeal held that since insurance contracts are “contracts of indemnity”, they should be interpreted “reasonably and fairly”. The
contract of insurance should be “liberally construed in favour of the insured” when “the words are, without violence, susceptible of
two interpretations”. This meant that the government’s imposition of a lockdown in response to multiple outbreaks of a “notifiable
disease” was covered by the infectious diseases clause.
35 TERS Directive art 3.7: “3.7 … 3.7.1 The company must be registered with the UIF; 3.7.2 The company must comply with the
application procedure for the financial relief scheme; and 3.7.3 The company's closure must be directly linked to the Covid -19
pandemic.” Where the entire company is not closed down, it appears that the employee can then directly claim the UIF reduced work
time benefit.
36
TERS Directive, cl 3.1.
37 TERS Directive cl 3.2.
38 TERS Directive cl 3.3-3.4. The employee is paid in terms of the income replacement rate sliding scale (38% -60%) as provided in
the Unemployment Insurance Act 63 of 2001.
39 TERS Directive cl 3.5.
40 TERS Directive cl 4.1 & 4.2.
4Unemployment Insurance Act (UIA) 63 of 2001, some relief were provided as discussed. However,
workers outside the conceptual framework of employee were excluded. This included workers in
the informal economy, independent contractors and various platform workers such as uber drivers.
Although domestic workers in South Africa are included in the definition of employee, enforcement
of labour laws remain problematic. Statistics indicated that only 20% of domestic workers were
registered for unemployment insurance and only 15% of those were able to access the fund. 41
Globally, it appears that women have been disproportionately affected by the pandemic; 42 women
were overrepresented in total unemployment and in net job losses. 43 Women are particularly
vulnerable and in June 2020, only 41% of UIF/ UIF-TERS beneficiaries were women, dropping to
39% in October 39%.44
Most of the workers in the informal economy are highly vulnerable to poverty, earning low and
irregular incomes and excluded from social insurance protection. 45 They often work in sectors that
carry a high risk of infection, and waste pickers, street traders, domestic workers and transport
workers are particularly at risk to contract the virus. Many of these workers are self-employed and
faced severe income losses due to lock-down. Unlike formal economy workers, these workers are
often not, or insufficiently, covered by social protection measures. The lack of social protection
means that these workers’ livelihoods are threatened (including limited access to health-care
services and no income replacement) without means to mitigate these threats because of a lack of
alternative sources of income.46 The COVID-19 crisis has thus exposed the devastating impact of
the absence of well-designed social protection systems,47 and highlighted the deep economic and
social inequalities as well as inadequate social protection systems that require urgent
(re)consideration.48 The pandemic has exposed the challenges faced by informal economy workers,
making them visible in a new way. 49
Informal traders are particularly vulnerable informal economy workers. The South African
government only recognised informal food trade as an essential service, after severe pressure from
informal trade organisations. 50 Other challenges experience by these traders included the fact that
local municipalities did not have adequate application systems for the granting of permits and could
not cope with the high volume of applicants.
In conclusion, employees retain all the normal protection regarding the right not to be unfairly
dismissed and not to be victimised for exercising any right and/or freedom of association. 51
Although there is clear regulation when an employer may require medical testing of employees,
there is no express regulation regarding medical treatment, in particular when an employer may
41 Rogan, M. & Skinner, C. “The Covid-19 crisis and the South African informal economy ‘Locked out’ of livelihoods and
employment” https://cramsurvey.org/wp-content/uploads/2020/07/Rogan-Covid-crisis-and-the-South-African-informal-economy.pdf
(02-02-21).
42
Casale, D. & Shepherd, D. “The Gendered effects of the COVID-19 crisis and on-going lockdown in South Africa Evidence from
NIDS-CRAM Waves 1-3 1”. https://cramsurvey.org/wp-content/uploads/2021/02/4.-Casale-D.-Shepherd-D.-2021-The-gendered-
effects-of-the-Covid-19-crisis-and-ongoing-lockdown-in-South-Africa-Evidence-from-NIDS-CRAM-Waves-1-3.pdf (02-02-21).
43 ibid.
44 ibid.
45 UNDP Report, Informality and social protection in African Countries: A forward- looking Assessment, 8, 2021.
46 Khambule, I. “The effects of COVID-19 on the South African informal economy: limits and pitfalls of governments response”
Loyola Journal of Social Sciences, 2020.
47 ILO https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---soc_sec/documents/publication/wcms_744612.pdf (10-07-2020);
ILO https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---soc_sec/documents/publication/wcms_754731.pdf (14/10/2020).
48
UN https://www.un.org/sites/un2.un.org/files/un_policy_brief_on_human_rights_and_covid_23_april_2020.pdf (17-07-2020).
49 WIEGO https://www.wiego.org/blog/reaching-missing-middle-social-protection-informal-workers-covid-19 (04-01-2021).
50 Bamu, P. & Marchiori, T. “The recognition of protection of informal traders in COVID-19 laws: lessons from Africa”, 2020,
WIEGO, Cambridge.
51 Chapter 8 of the Labour Relations Act 66 of 1995 deals with termination of employment and chapter 2 deals with freedom of
association, Labour Relations Act 66 of 1995 | South African Government (www.gov.za).
5require an employee to be vaccinated. 52 The South African Constitution of 1996 does establish the
right to bodily and psychological integrity (which includes the right to security in and control over
their body) in section 12(2) and the National Health Act 61 of 2003, gives effect to this right by
stating that a health service (including medical treatment) may not be provided to a user without the
user’s consent. The OHSA obliges employers to provide and maintain a safe working environment
by all means “reasonably practicable” and it therefore seems that education and motivation will in
most instances be safer than mandating vaccination.
The national lockdown changed the way in which people work, the place from which they work and
in several instances the remuneration that they received. Of the 15 million persons who were
employed in 2020, 78,3% were expected to work during the national lockdown by the
companies/organisations they work for.53 Men were predominantly representative in this group in
most industries, except in community, social services and private households where women were
more represented.54
As schools and child-care facilities closed, women, regardless of their marital status took on more
care work and specifically more childcare work.55 Before lockdown employees, specifically
women, could prove their full attention to their work, and structure their workday, through the
support of domestic workers and child minders,56 during lockdown, employees lacked this
flexibility, support and control. In many instances, women working from home simultaneously had
to deal with the home-schooling of their children, as well as taking care of the household and
working remotely.57 Considering the predominant role of women with reference to care work during
lockdown, the country also requires a gender-responsive strategy.
For many employees in South Africa, the lack of a workspace at home was a challenge, having to
share a common room with their family members while working remotely, without good internet
connectivity and often with children present. 58 South Africa is a country with a developing
infrastructure and remote working highlighted this fact, including interruption in electricity
provision (load shedding).
Nicola Smit
Stellenbosch University
Elmarie Fourie
University of Johannesburg
52 S 7 of the Employment Equity Act 55 of 1998, Employment Equity Act 55 of 1998 | South African Government (www.gov.za).
53
Statistics South Africa (SSA) Quarterly Labour Force Survey Quarter 4: 2020 12.
54 SSA Quarterly Labour Force Survey Quarter 4: 2020 13.
55
Casale, D. & Shepherd, D. https://cramsurvey.org/wp-content/uploads/2021/02/4.-Casale-D.-Shepherd-D.-2021-The-gendered-
effects-of-the-Covid-19-crisis-and-ongoing-lockdown-in-South-Africa-Evidence-from-NIDS-CRAM-Waves-1-3.pdf (02-02-21).
56 Koekemoer, E. “Taking a new approach to work-life balance amid COVID-19”, 2020, University of Pretoria.
57 Radi, S. “The future after the COVID-19 pandemic: remote work in South Africa”, 2020, SSRRC, New York.
58 Radi, S. “The future after the COVID-19 Pandemic: remote work in South Africa”, 2020, SSRC, New York.
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