1. Do I have to pay employees during lockdown?

  • “No work no pay” still applies

  • There is no forced annual leave

  • There is no payment for public holidays

  • If you are registered with UIF and closed/partially closed, you can apply for the COVID-19 TERS Benefit (www.labour.gov.za)

2. Procedural requirements if I want to retrench or change employment conditions?

  • Retrenchment must comply with Section 189 of the Labour Relations Act

  • Consider alternatives first, such as short term or staggered start-ups

  • Unilateral changes to employment conditions are not allowed and proper consultation is required

  • Retrenchment compensation includes pro rata salary, accrued leave, notice and severance pay.

  • Consider offering voluntary severance packages as an alternative.

3. Occupational Health and Safety Act (“OHS”) and COVID-19

  • COVID-19 falls under group 4 of the Regulation for Hazardous Biological Agents

  • Compile and implement a COVID-19 Workplace Policy

  • Pay attention to Health and Safety Policies and Procedures, especially relating to infection control as a practical sub-discipline of epidemiology

  • Undertake ongoing risk assessment to ensure compliance.

4. Leases, Contract and COVID-19: Force Majeure or “impossibility of performance”?

  • Tenants
    Failing to pay rental is a breach of your lease. This could result in cancellation of the lease, legal action of recovery of outstanding rental, damages claim for breach and calling upon personal suretyships.

  • Landlords
    Avoiding losing tenants at a time when tenants is problematic whilst still covering your costs.

  • What does the lease say?
    If there is not Force Majeure clause in your lease, our common law applies.

  • What must the tenant prove if there is not Force Majeure clause in the lease?
    - Unforeseeable with reasonable foresight.
    - An absolute as opposed to a probable impossibility.
    - An absolute not a relative impossibility.
    - Not the fault of either party. - The “contrary common intention of the parties” could override the defense of impossibility.

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