WHAT ARE THE SOCIAL AND LEGAL ASPECTS OF COVID IN SOUTH AFRICA?

The high contagious- and even deadly- coronavirus (COVID 19) had a devastating impact on South Africa. As a fact, due to the South African poor health management, the impact of the pandemic gradually affected a great number of citizens from the mentioned region, and still, its growth can not be controlled.

FROM SOUTH AFRICA- As a result of this pandemic, the South African government and its advisers declared COVID 19 as

a national disaster, defined in the Disaster Management Act N°57 of 2002, as a disastrous event which occurs in more than one province in South Africa, or in a single province unable to deal with the disaster effectively on its own. 

Lockdown was created to be effective from March 27 to April 30, 2020. The freedom of movement was limited and restricted due to the increase in the infection. South Africans were only allowed to work from home, and to leave them for essential services (food and medical attention). It was also prohibited to cross provincial borders in order to attend the funerals of their loved ones. 

The quarantine had the greatest impacts and consequences for people with low incomes, this means, the most vulnerable ones, because the government couldn’t implement effective control measures to contain it. The closure of all types of businesses devastated the economy and the well being of the citizens.

SOCIAL ASPECTS
South Africa has a serious challenge with gender-based violence (GBV) in its history, which currently remains. There also are high levels of alcohol and drug abuse- the cause of GBV. For this reason, and in order to decrease the violence against women, the government banned the consumption and the selling of alcohol.

The inhabitants that live in informal settlements closely located to sharks, plus the absence of infrastructure, made social distancing impossible under the lockdown regulations. Poor sanitation and lack of service delivery have made the South African Citizens to illegally occupy the land. The Minister, Lindilwe, made it clear that 

people should no be evicted from illegally occupying the land.

But in some parts of the country, displacement took place ignoring the minister's directive. Police and other law enforcement were placed in high population areas to reassure the lockdown (stay at home) law. This has caused a lot of tension between social and law enforcement agencies, due to citizens suffering from hunger, as the majority of people in South Africa are informal traders and they couldn’t operate their businesses due to lockdown regulations. Clearly, the setting of this lockdown regulation was not clearly set to protect the citizen's rights and economic stability. It was set to protect human health and well being.

LEGAL ASPECTS
The government has also underlined the protection of the consumer under the "Consumer Protection Act" N°68. From a law perspective, regulations were also made in terms of excessive pricing provisions.

Furthermore, the regulations made reference to excessive items, emergency products, and services. This consumer protection act was highlighted to prevent unfair pricing as some businesses were madly increasing the price of essential necessities.

The Fair Trade Independent Tobacco Association took the government to court and file notice of motion, because of the ban of cigarettes- under the lockdown regulations. The government was clearly trying to minimize smoking. It is of public knowledge that smoking causes respiratory-related diseases.

The Wilson Center, an ONG, explained that the second set of regulations published by the Minister covers a variety of consumer and customer protection measures, in relation to: 

(i) conducts that will be regarded as unconscionable and prices that are unfair, unreasonable or unjust under the Consumer Protection Act No. 68 of 2008; and 

(ii) obligations on suppliers to ensure equitable distribution of goods to customers and maintain adequate stocks of certain goods (which may include restrictions on the numbers of items purchased by a customer in a certain time period). From a competition law perspective, regulations are also made in terms of the excessive pricing provisions of the Competition Act.

Under the Competition Act, the Minister is empowered to make regulations regarding the determination and calculation of an excessive price. The Minister has invoked these powers to prescribe that, during any period of the national disaster, a material price increase in a listed good or service which either: 

(i) does not correspond to or is not equivalent to the increase in the cost of providing that good or service; or 

(ii) increases the net margin or mark-up on that good or service above its average margin or mark-up in the three month period prior to 1 March 2020, is a relevant and critical factor for determining whether the price is excessive or unfair and indicates prima facie that the price is excessive or unfair.

The listed goods and services on these regulations include basic food and consumer items, emergency products and services, medical and hygiene supplies, and emergency clean-up products and services. 

The regulations are a creative use of the Minister’s powers to make regulations regarding the test for excessive pricing, which traditionally would not have been anticipated to prohibit conduct in specific and temporary circumstances such as those now arising from the COVID-19 pandemic. 

These regulations now prescribe that the "specific conduct identified" is a relevant and critical factor in establishing excessive pricing and that their existence alone will be enough to establish a prima facie case. 

The regulations made under the Competition Act refer to excessive and unfair pricing, while the prohibition in the Act refers only to excessive pricing. Unfairness in pricing has only recently been introduced as a concept in South African Competition Law in the context of the new buyer power provisions.

CONCLUSION
The COVID19 in South Africa has brought systemic weakness and inequality of delivery of water and sanitation services, housing, healthcare, and infrastructure in various communities across the country.

To contain the spread of the disease, highlighted key capacities are lacking such as manufacturing of face masks, gloves, testing types of equipment, and maintaining effective public health. The pandemic showed the effectiveness and responsiveness of financial institutions, such as the Unemployment Insurance Funds (UIF), and raised questions about South Africa's financial system. 

By Karabo Bonny Kau

Karabo Bonny Kau, aged 25, is a paralegal consultant from South Africa. He works in the legal administration and in the commercial field. He has a certificate in Paralegal Practice Studies and intends to do an LLB. He does legal research, analyzes, organizes, and prepares case materials. The topics that interest him are related to immigration law and the socioeconomics of the African Continent.