10.6092/issn.1561-8048/10780
South Africa’s existing social security and labour law framework is inadequate to protect employees in the formal sector during the Covid-19 lockdown. However, commendable temporary income replacement measures have been introduced to counter this situation. Nevertheless, South Africa’s biggest shortcoming lies in the lack of protection for its considerable informal sector. Government did not respond adequately.  When informal sector workers don’t work, they remain hungry.
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1561-8048
10780
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Stefan van Eck
Italian Labour Law e-Journal
Health and Safety
COVID-19 and Labour Law: South Africa
Text.Serial.Journal
https://illej.unibo.it/
13
National Reports
2020-04-15
2020-04-14
2020-04-15
2020-09-15
ILLeJ
Stefan van Eck
2020/04/15
10.6092/issn.1561-8048/10780
University of Pretoria
1561-8048
1S
Health and Safety
en
COVID-19 and Labour Law: South Africa
https://illej.unibo.it/article/download/10780/10689
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COVID-19 and Labour Law: South Africa                                              Italian Labour Law e-Journal
Stefan van Eck                                                                    Special Issue 1, Vol. 13 (2020)
stefan.vaneck@up.ac.za                                              Covid-19 and Labour Law. A Global Review
                                                                                                ISSN 1561-8048
                                                                 https://doi.org/10.6092/issn.1561-8048/10780




             COVID-19 and Labour Law: South Africa
                       Stefan van Eck*


                                                 Abstract

     South Africa’s existing social security and labour law framework is inadequate to protect
     employees in the formal sector during the Covid-19 lockdown. However, commendable
     temporary income replacement measures have been introduced to counter this situation.
     Nevertheless, South Africa’s biggest shortcoming lies in the lack of protection for its
     considerable informal sector. Government did not respond adequately. When informal sector
     workers don’t work, they remain hungry.

     Keywords: Covid-19; Labour Law; Lockdown; Social Security Law; Health and Safety.




 1. Introduction.

     South Africa is a developing country with an unemployment rate of 29,1%. Under the
 youth between 15 and 35 it is 40,1%1. There is a significant divide between the rich who
 live and work under first world conditions and the poor who live in townships and rural
 areas. Last-mentioned make a living through low-end jobs and in informal trade. It is
 almost impossible for the informal sector who live in small over-crowded homes to
 maintain social distancing. Hadebe reports that “people should be careful … not … to
 overburden the poor in their push to deal with the spread of the virus.” He says that the
 poor are “suddenly expected to … listen to rules governing the lockdown”, but “it is
 unlikely that they will have the propensity to listen to anyone”2.
     This contribution considers what steps were taken regarding the declaration of a
 lockdown and what measures were implemented to counter problems in employment
 relations.




 *
   Professor Stefan van Eck. Professor of Labour Law, University of Pretoria; President of the African Labour
 Law Society. http://orcid.org/0000-0002-1563-6736.
 1 StatsSA, Quarterly Employment Survey, 2019,

 http://www.statssa.gov.za/publications/P0277/P0277December2019.pdf, accessed 7 Apr. 2020.
 2 Hadebe S., “Will Covid-19 soon become a poor man’s burden?”, Cape Times 29 Mar 2020.
    Stefan van Eck                                                                 Italian Labour Law e-Journal
                                                                                  Special Issue 1, Vol. 13 (2020)
                                                                     Covid-19 and Labour Law. A Global Review
                                                                                       Section: National Reports




2. General Framework.

    South Africa is fortunate because the disease spread here a couple of weeks after it
started thriving in the northern hemisphere. The country also acted swiftly in announcing
strict lockdown measures early after the first Covid-19 cases were detected.
    Government announced an initial 21 day, and a subsequent two week, nationwide
lockdown from 26 March 20203. Country borders were closed, all non-essential employees
were sent home, and schools, universities and restaurants were shut. This had a devastating
effect on the formal sector, but even more so on the informal sector where people have no
social security assistance. The existing social security and labour law frameworks are
inadequate for a crisis like this.


3. Income support for temporarily unemployed persons.

    Government requested employers not to dismiss employees during this time. However,
some employers are already on the brink of bankruptcy. The current Unemployment
Insurance Act (the “UIA”)4 provides some assistance. Employers and employees each
contribute 1% of remuneration to the Unemployment Insurance Fund. Only contributing
employees may claim unemployment benefits. However, it is problematic that a claim can
mainly be lodged by a dismissed employee. The UIA does not assist employees during a
situation of temporary suspension of services based on force majeure. In effect, the UIA
encourages employers to dismiss workers to enable them to claim unemployment benefits.
    After social dialogue, government implemented a temporary remuneration
supplementation scheme. In terms of the Temporary Employer/Employee Relief Scheme
(the “TERS”). All contributing employees to the UIF can claim a Covid-19 benefit where
the employer has temporarily closed operations5. Successful applicants receive salary
benefits on a scale between the minimum wage and a capped maximum amount. This can
be claimed for a maximum period of three months, or the period of the lockdown,
whichever period is the shortest6. This is a positive development, but it does not cover
persons in the informal economy, or persons engaged in gig-work such as uber drivers.
These categories remain hungry if they don’t work.
    Employers and employees also considered the depletion of compulsory statutory leave.
The Basic Conditions of Employment Act (the “BCEA”)7 provides all employees a

3 SA Government, Disaster Management Act Regulations, https://www.gov.za/documents/disaster-management-
act-regulations-address-prevent-and-combat-spread-coronavirus-covid-19, accessed 8 Apr. 2020.
4 No 1963 of 2001.
5 Department of Labour and Employment, UIF to process COVID-19 TERS benefit to assist employers and workers

during Coronavirus (COVID 19) lockdown, http://www.labour.gov.za/uif-to-process-covid-19-ters-benefit-to-
assist-employers-and-workers-during-coronavirus-(covid-19)-lockdown, accessed 9 Apr. 2020.
6 The amount of the benefit is based on a sliding scale of between 38% and 60% of earnings, where the

lowest paid are at the top of the scale. See Paton C., UIF to process COVID-19 TERS benefit to assist employers
and workers during Coronavirus (COVID 19) lockdown, https://www.businesslive.co.za/bd/national/2020-04-08-
uifs-r30bn-support-for-workers-hit-by-the-lockdown-is-ready-for-claims/, accessed on 9 Apr 2020.
7 No 75 of 1997.



https://doi.org/10.6092/issn.1561-8048/10780                                                                    2
    Stefan van Eck                                                      Italian Labour Law e-Journal
                                                                       Special Issue 1, Vol. 13 (2020)
                                                          Covid-19 and Labour Law. A Global Review
                                                                            Section: National Reports




minimum of 15 work days’ annual leave. Unless agreed differently, the employer may
determine the time when annual leave should be taken. Some employers sent employees
home on paid annual leave during the lockdown8. Sick employees could also be placed on
statutory sick leave. Every employer must pay a sick employee 30 days paid sick leave over
a leave cycle of three years9.


4. Health and safety of workers and social distancing.

    The government appealed to employers to adhere to the Occupation Health and Safety
Act (the “OHSA”)10 in relation to COVID–19. There is an obligation on employers to
ensure health and safety at work. Government has developed a COVID-19 guideline which
entails the implementation of among others engineering controls (such as installing high-
efficiency air filters); administrative controls (such as replacing face-to-face meetings with
virtual communications); and safe work practices (such as the provision of gloves, masks
and sanitisers).


5. Increased caregiving duties due to school closures.

   South Africa did not introduce any special measures regarding caregiving to children
due to the closure of kindergartens and schools. The BCEA does not make provision for
any form of parental leave based due to force majeure. Parents are only entitled to 3 days
family responsibility leave in instances where children are ill. Locked down parents look
after their own children. Medical care workers and persons performing essential services
are in a difficult situation due to a lack of assistance with caregiving.


6. The self-employed, freelancers and informal workers.

   Domestic and farm workers are covered by the UIA and the BCEA. However, South
Africa has a significant proportion of informal sector workers. Apart from some large
corporations and charities that hand out food parcels and small donations of sanitising
products, this vulnerable category of workers have been left out from any co-ordinated
additional form of social assistance protection by government.




8 S 20 of the BCEA.
9 S 22 of the BCEA.
10 No 85 of 1993.



https://doi.org/10.6092/issn.1561-8048/10780                                                         3
     Stefan van Eck                                                                Italian Labour Law e-Journal
                                                                                  Special Issue 1, Vol. 13 (2020)
                                                                     Covid-19 and Labour Law. A Global Review
                                                                                       Section: National Reports




7. Small businesses and tax incentives.

   The government has made funds available to small businesses who are 100% owned by
South African citizens and are tax compliant11. The South African Revenue Services has
also granted tax-compliant small businesses a four-month payment deferral of 20% on their
taxes deducted from employees’ salaries and that has to be paid over to the fiscus.


8. Social Dialogue.

   The social partners where comprehensively involved in developing plans for temporary
income replacement for formal sector employees. Agreement was reached at the National
Economic Development Council before the implementation of the TERS benefit. This is
South Africa’s central policy formulating body that is comprised of representatives of
government, organised business, trade unions and community organisations12.


9. Conclusions.

   South Africa’s current social security and labour law framework is not sufficient to deal
with the pandemic. However, commendable temporary measures were introduced to
provide limited income replacement for employees during the lockdown. South Africa’s
principal shortcoming is in respect of the informal sector. Meaningful and co-ordinated
steps were not implemented to provide protection for this vulnerable segment of society.




Copyright © 2020 Stefan van Eck. This article is released under a Creative Commons
Attribution 4.0 International License




11 Business Insider Today, Small businesses in SA can now register for help during the coronavirus disaster,
 https://www.businessinsider.co.za/how-to-register-for-the-small-business-coronavirus-relief-fund-2020-3,
accessed 9 Apr. 2020.
12 http://nedlac.org.za/, accessed 9 Apr. 2020.



https://doi.org/10.6092/issn.1561-8048/10780                                                                    4
