President Ramaphosa announced the termination of the National State of Disaster on 4 April 2022.
The two-year long regulatory scheme came to an end as all regulations established under S27(2) of the Disaster Management Act 57 of 2002 were repealed. However, the repeal persevered certain transitional provisions which were to be terminated 30 days after the President’s announcement.
On 4 May 2022, a month later, the Minister of Health, Dr Phaahla, published Regulations Relating to the Surveillance and Control of Notifiable Medical Conditions which amended Regulation 16 under the National Health Act 61 of 2003. The insertion of Regulations 16A and 16C focused on mask mandates, gatherings, and the regulation of persons entering South Africa.
Wearing a face mask has formed part of life in South Africa for over two years. It was first compulsory in all public spaces, whether indoors or outdoors, and most recently only in public indoor spaces and public transport.
On 22 June 2022, Dr Phaahla, gazetted a notice which repealed multiple regulations under the Surveillance and Control of Notifiable Medical Conditions in the National Health Act. In effect, the governmental mandate to wear a face mask in South Africa came to an end.
Whilst it is likely that the vast majority of people will cease to wear a mask in the absence of the legal obligation to do so, Phaahla made note of the fact that masks may still be required in certain contexts.
For example, Phaahla stated:
“If you run a facility, you have the right to determine regulations – whether you run a shop, a restaurant, a hotel – you can have your own regulations that you are comfortable with and your clients are happy with as well”.
The above could be interpreted to include private settings whereby requirements remain at the discretion of land owners, business owners and event planners.
In our Common Law, it is trite that the owner of the premises has the right to reserve admission, provided the rules are reasonable and valid. There is nothing precluding the implementation of policies which require the wearing of a face mask. In practice, this would permit a school governing body to retain its own mask mandates which are distinct from Governmental policies. Another example would be employers implementing policies which require employees to wear masks whist participating in daily work routine.
In order to determine whether a rule satisfies the threshold of validity and reasonableness requires the following assessment:
- Whether the employer had the requisite authority to determine the rule within the scope of the employment contract;
- Compliance with existence of relevant statutes and regulations; and
- Whether the rule is reasonably necessary for the safe and efficient conduct of the business.
Provided the above considerations are satisfied, the courts will not interfere and the rule will be found valid if challenged by an affected employee. Due to this well-established legal principle, non-compliance with an implemented rule may give rise to sanctions.
