Analysing SA’s COVID-19 legal risks
by Zaakir Mohamed. Supermarkets are closing temporarily as they're hit by COVID-19 infections. What are the legal and administrative risks?
by Zaakir Mohamed. Supermarkets are closing temporarily at a fair frequency as they’re hit by COVID-19 infections, have to sanitise everything, and then reopen. But beyond the health risks, what are the legal and administrative risks for businesses? If, for instance, a customer is infected with the coronavirus because of inadequate health procedures in a shop, can the shop owner be found legally liable?
Worldwide concerns, local solutions
Companies across the globe want legal clarity about how their organisations could be criminally or administratively liable as a result of COVID-19. At CMS, we recently held webinars for our worldwide audience, including those serviced by our South African office. Some of the countries involved in the discussion, included South American countries Peru and Columbia, Eastern Europe’s Ukraine and Russia, and the Principality of Monaco in Western Europe.
While a number of similarities across countries arose, there were also a number of marked differences; with legislation in South Africa demonstrating the diligence of the country’s legal system. There are a number of key legal considerations retailers need to be aware of as the world reopens, but we’re heartened by the clarity around risk in South Africa.
For one, South Africa has a very robust Occupational Health and Safety Act (OHSA). As a result of this Act alone, South African retailers and their employees can be held criminally liable for any failure to comply with its requirements, irrespective of COVID-19. Monaco has similar regulations to South Africa; but companies in the Ukraine, Russia, Peru and Colombia cannot be held liable for breaches in health and safety that lead to an infection with COVID-19. In those countries, only individual employees are liable for their individual actions.
Along with its stringent regulations, South Africa’s OHSA also clearly identifies repercussions for violating the Act, either administratively or criminally. An employer who breaches OHSA could be liable to a fine of up to R100,000 or two years in prison, or both. In turn, an individual who breaches OHSA could face a R50,000 fine or one year in prison, or both.
When South Africa declared a national state of disaster on 15 March and issued regulations in terms of the Disaster Management Act (DMA), it identified specific offences that individuals may be found guilty of. These include intentionally misrepresenting that they are infected with COVID-19; publishing a statement to deceive anyone else about COVID-19, about anyone’s infection status, or about any government measures; or intentionally exposing anyone to COVID-19. Breaking a DMA regulation could land you a fine or six months in prison.
Employees who get infected while at work have recourse under the Compensation for Occupational Injuries and Diseases Act, which means that the employee would claim from the Compensation Fund rather than sue their employer.
Murder charges possible
However, you could be prosecuted for either assault, attempted murder or murder if you intentionally expose anyone – including customers – to the COVID-19 virus. There is, of course, also scope for civil claims should an employee or customer contract COVID-19 while in the workplace. In other cases – such as between business partners or between two employees – civil claims may arise either through breach of contract, negligence or the like, but each case would be assessed on its merits.
Other countries also make clear distinctions between fines or imprisonment for criminal rather than administrative liability. The biggest deterrent to transgression in Russia is a 90-day suspension of business activities, or company officers being disqualified from holding certain positions for up to three years. In the event of a death, this ramps up to seven years.
For now, it seems no countries (with the exception of Colombia and the Ukraine) actually prosecuted businesses or senior management for breaching regulations. However, there is a case pending in South Africa where a CEO of a mine was arrested for allegedly instructing miners to return to work in contravention of our lockdown regulations. The CEO was released on bail, and the case is due in court in August 2020. As far as we can ascertain, no retailers or retail managers have faced similar charges.
Act now for long term peace of mind
In addition to continuing to comply with OHSA regulations, we strongly recommend that all retailers stick to the DMA regulations. Most of these are well-known to retailers: screens to protect cashiers, wearing masks, regularly sanitising surfaces and regular handwashing.
Finally, however difficult it is in the retail industry, the general rule globally remains that, if employees can work from home, they should. We recommend that retailers carefully consider whether their accounting staff, for instance, could work from home, or come in for only limited periods, to reduce their risks of exposure to COVID-19.
The reality is that the virus is likely to be around for a while, so any rational measures you take to reduce your legal risks now are likely to stand your company in good stead in the long run.
Zaakir Mohamed is director and head of Corporate Investigations and Forensics at the commercial law firm, CMS South Africa (previously CMS RM Partners). Before joining CMS, as a top five leading global law firm, RM Partners was founded by senior lawyers looking to transform and modernise the South African legal market, but who also understand Africa and international markets. CMS South Africa provides the full spectrum legal, tax and transaction advisory services.
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