Covid-19 | Q&A
Facing unchartered territory? Want to make sure your business needs are met given current conditions?
Pop us a question and let your fellow members help you out.
Please note that all expertise shared will pertain solely to business-related topics, and should not be considered as expert medical advice. Please contact the relevant authorities for health-related questions.
YOUR QUESTIONS
Q&A Human Resources / Legal / Staff Management
11/08/2020
Philip Geromont, Director @ENSafrica's answer:
"Correct – the board appoints the business rescue practitioner (which must be accepted by CIPC which needs to ensure that the proposed practitioner is licenced to take appointments). No judicial intervention is required."
11/08/2020
Philip Geromont, Director @ENSafrica's answer:
"A company can commence business rescue proceedings pursuant to a board resolution (no requirement for any Court order). The resolution and a sworn statement by the board is submitted to CIPC and once accepted by CIPC (who just makes sure that the proper procedures have been followed) then the business rescue proceedings commence. To pass a resolution commencing business rescue the board needs to conclude that the company is financially distressed (reasonable prospect that the company will not be able to pay its debts within the ensuing 6 months or reasonable prospects that the company will become insolvent within the ensuing 6 months) and that there is a reasonable prospect of rescuing the company. Rescue means either restoring the company to solvency to enable the company to continue as a going concern or if this is not possible ensuring a better return to creditors than the immediate liquidation of the company. Attached is a general memorandum regarding business rescue."
01/04/2020
ENSafrica's explanation:
"On 23 March 2020, South African President Ramaphosa announced a nationwide lockdown for 21 days with effect from midnight on Thursday, 26 March 2020 as part of government’s integrated measures to prevent and contain the spread of the coronavirus (COVID-19).
The nationwide lockdown will have a cascading effect on the operations of many South African businesses, courts and the regulators (including the Broad-Based Black Economic Empowerment (“B-BBEE”) Commission). To this end, the offices of the B-BBEE Commission will be closed from 27 March 2020 to 20 April 2020 and no submissions, filings, responses, documents and/or other correspondence pursuant to the B-BBEE Regulations 2016 will be accepted by the B-BBEE Commission.
So, what does this mean for entities who are obliged to register a major B-BBEE transaction and/or submit an annual B-BBEE compliance report pursuant to the B-BBEE Regulations?
- parties to a major B-BBEE transaction concluded between the period 11 March 2020 to 17 April 2020 are permitted to register the major B-BBEE transaction within 30 calendar days following the end of the lockdown period, notwithstanding the prescribed period contemplated in regulation 18(1) of the B-BBEE Regulations
- all JSE-listed entities, organs of state, public entities and SETAs that are required to submit their annual B-BBEE compliance report between the period 25 March 2020 to 17 April 2020, are permitted to submit their compliance reports within 30 calendar days following the end of the lockdown period, notwithstanding the prescribed period contemplated in regulation 12 of the B-BBEE Regulations.
Furthermore, all stakeholders that are required to respond to any:
- allegations pursuant a compliant;
- any findings issued pursuant to an investigation;
- alignments of its major B-BBEE transactions following recommendations received from the B-BBEE Commission,
are permitted to submit these to the B-BBEE Commission within 30 calendar days following the end of the lockdown period, notwithstanding any prescribed periods contemplated in the B-BBEE Regulations."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
23/03/2020
One of our SME member kindly share its actions and ideas of cost cutting:
- Ask the landlord a decrease of rental
- Closing of company to avoid electricity / water cost
- Renegociation or suspension of insurance contract (no used vehicles - computer insurance)
- Decrease of accounting fee
- Salary - Involvment of department of labour if your business is shut down completely
- Overdraft facilities with the bank
As a result of the implementation of all these actions, our member was able to decrease their cost by 50% … maybe more if they can find solution on salary with government.
20/03/2020
Stéphane Laroche, Business Development Executive @Stratogo's answer:
"Retrenchment – This will warrant retrenchment cost such as severance pay, notice pay and so forth - not advisable at this point / in this particular situation (COVID-19) because if all is well companies will call staff back to work.
Lay off – This is an American term for Termination or Fired - also not advisable at this time because companies would want to terminate the employment due to the pandemic (exceptional circumstances) but this will also attract costs such as notice pay , term leave and etc.
Short time - this is reducing the hours of work for employees he will need to consult with them and reach an agreement ( You can also refer to what I explained on this particular topic on Monday “Is Short Time legal in SA”) also the government is assisting people with UIF should they be on short time."
17/03/2020
ENSafrica's explanation:
"Any company holding a shareholders’ meeting in the next three months should be on guard and take active steps to ensure compliance with the Gatherings Prohibition.
If a company is holding a shareholders' meeting in the next three months, or if a public company's annual general meeting is required to be held no more than 15 months from the date of the previous annual general meeting in terms of section 61(7)(b) of the Companies Act, and such date falls within the aforementioned three-month period, then that company ought to (and, is in fact obliged) to take steps to reschedule such meeting such that it is held:
- entirely by electronic participation (together with submission of proxies) as contemplated in section 63(2)(a) of the Companies Act, if permitted by that company's memorandum of incorporation; or
- on a date after the termination of the Gatherings Prohibition.
The rescheduling would, in all likelihood, require a fresh notice of a meeting to be issued (and the withdrawal of the previous notice) either with the new electronic participation details or the new shareholder meeting dates. Obviously, if the rescheduling above takes that company beyond the time period prescribed by section 61(7)(b) of the Companies Act, then that company ought to apply as soon as possible to the Companies Tribunal for an extension of the applicable time period. Good cause is required to be shown, and compliance with the Gatherings Prohibition, we strongly believe, would be sufficient.
However, we point out that if the historic participation at a particular company's shareholders' meeting is such that no more than 100 people ordinarily attend, then that company may continue to hold the meeting but again it should be on guard not to breach the Gatherings Prohibition. Attendance should be monitored and if attendance would subsequently breach the Gatherings Prohibition, then we submit one approach in the circumstances would be for such meeting to be immediately postponed (or cancelled and rescheduled following the principles above).
Another approach that would require detailed consideration would be whether a shareholder's right to participate in person at a shareholders' meeting may be limited by reference to the Gatherings Prohibition on a particular basis (eg, on a first-come-first-served basis, capped at 100). Any such limitation should be taken following legal advice and would depend, in the least, on:
- the facts of each case; and
- the express terms of the shareholder notice in question."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
17/03/2020
Simon Miclet, General Manager @Polyglot's answer:
"While the virus has taken most businesses by surprise, making sure HR policies and procedures are always up-to-speed for a crisis, will prove beneficial to your business. There is no need to panic, though. Even if your business lacks a Business Continuity Plan (BCP), there are still things you can do right now.
- Stay updated
- Keep your employees informed
- Consider work and travel restrictions
- Set up working from home
- Stay positive
In an ideal world, all employers should have a HR contingency plan in place that prepares them for a crisis – even when business is running as usual. Having these pre-emptive HR protocols in place is a win-win for all; employers get to avoid potential legal fees and fulfill their responsibility of keeping employees healthy and safe."
16/03/2020
Stéphane Laroche, Business Development Executive @Stratogo's answer:
"Through the consideration of different cases law set out it is clear that a contract will terminate automatically if it is absolutely impossible to permanently fulfil the terms of the contract.
That said, due to the fact that the coronavirus outbreak has not been deemed to be permanent - short of termination of contract – the proposal by an employer organise short-time working and inter alia, pay a % of the employee’s remuneration would be acceptable practice and in accordance with the norms and legal principles in South Africa.
Pay cuts are legal as long as they are not done discriminatorily (i.e., based on the employee's race, gender, religion, and/or age). To be legal, a person's earnings after the pay cut must also be at least minimum wage."
16/03/2020
Stéphane Laroche, Business Development Executive @Stratogo's answer:
"The Employer is obliged to ensure that all the necessary mitigating steps and measures are put in place in terms of directives and guidelines issued by the Government.
As long as the Employer has discharged its aforesaid obligations – Employees who refuse to report for duty out of fear of being infected may stay at home only for a limited duration period. In such event, an Employee may take his/her annual leave. If not, the NO WORK - NO PAY policies would be applicable.
This would obviously depend on the operational exigencies of each and every Employer."
Q&A UIF / TERS
01/05/2020
Nelene Naicker, Managing Director @Artemis Group explanation's:
"There has been no confirmation that the UIF TERS relief will be continued after June 2020. What we know is that the fund has R30bn in immediately accessible funds to fund the scheme and this in itself cannot pay claims further than June 2020 based on the current projections. If this relief is to be extended, it would need to be funded from another source. We will keep you updated if there are any further developments."
01/05/2020
Nelene Naicker, Managing Director @Artemis Group explanation's:
"We are aware that all TERS claims for foreign nationals have been rejected by the online portal. This was as a result of a challenge experienced with the verification of passport numbers by the online system. The instruction received from the UIF is that employers, affected by this problem, should complete UI19 forms declaring these foreign nationals and, together with proof of payroll for January to March 2020, email the documents to Covid19compliance(@)labour.gov.za.UI19 form attached to this mail for your reference."
01/05/2020
Nelene Naicker, Managing Director @Artemis Group explanation's:
"When you log onto the online portal, click on ‘Payment breakdown report’ to see the payment breakdown of successful payments and declined payments. The guidelines will be automatically downloaded to assist you to rectify declined payments."
01/05/2020
Nelene Naicker, Managing Director @Artemis Group explanation's:
"You are still required to sign and return the approval and acceptance letter together with the proof of payments. If you already paid your staff, ENSURE that the amounts paid ARE NOT LESS than the relief provided. If that is the case, a top up payment is required to match the amounts received to the UIF. All proof of payments still need to be sent. Failure to do so will prevent you from receiving any further claims."
01/04/2020
Nelene Naicker, Managing Director @Artemis Group shares an easy step-by-step guide on how to apply for the UIF for your staff.
>> Get the practical note and all necessary documents to fill in your application.
Contact: Nelene Naicker |nelene@artemis-group.co.za | +27 10 020 6980
Q&A: Travel / Flights
16/03/2020
Air France and KLM team's answer:
Air France and KLM South African website are updated immediately to answer your questions. Check accurate info online before to call their hotline. These pages are regularly updated according to country situations.
>>> Air France
>>> KLM
18/03/2020
South African Government is imposing a travel ban on foreign nationals from high-risk countries such as Italy, Iran, South Korea, Spain, Germany, the United States, the United Kingdom and China as from 18 March 2020.
South Africa has 72 ports of entry in the country which are land, sea and air ports.
Of the 53 land ports, 35 will be shut down with effect from Monday 16 March. The detailed list of closed ports is on the link below.
>>> More info here
26/03/2020
Air France and KLM team's answer:
"In compliance with the measures of the South African government, announced 25th of March, Air France – KLM has to suspend all flights between South Africa and Europe. The prohibition of all international and domestic flights will become effective during the night of the 26th to 27th of March at midnight."
>>> Read the full statement here.
Q&A Suppliers / Procurement / Contracts
01/04/2020
ENSafrica's explanation:
"Other than hand sanitizer manufacturers, private hospitals and the like which stand to profit from the coronavirus (COVID-19) disaster unfolding, the vast majority of South African companies fall into two groups: those that are hemorrhaging but will ultimately survive, and those who will not. Into which of these two categories a business falls will very much depend on whether it can, due to COVID-19, legally avoid settling some of its ongoing expenses until its erstwhile levels of income recover post-COVID-19 and whether its debtors can, due to COVID-19, legally avoid paying ongoing liabilities to it due to the crisis.
It is therefore crucial that businesses understand the effects of COVID-19 on the validity of their ongoing contractual liabilities to and by others. As companies scramble to understand the contractual consequences of force majeure or so-called “acts of God”, this article helps to offer some insight and practical advice on what can be a complex area of our law. Many businesses will have force majeure clauses stuck away in the nether parts of their agreements that they never read. Because natural disasters are relatively rare in South Africa, and we live in peaceful times, many do not spend much time on these clauses when negotiating agreements. Moreover, many agreements do not even contain those clauses and the common law principles will apply.
The law on force majeure and supervening impossibility of performance
The basic rule of South African law is that contracting parties will be held to their promises. However, our law makes an exception to this and will not consider a party to be in breach of an agreement if a recognised case of “supervening impossibility of performance” occurs. For a situation to amount to supervening impossibility of performance sufficient to terminate or, if applicable, suspend a contract, it must meet two requirements:
- The performance must be objectively impossible:
- this entails that the impossibility that must be such that no one can tender the agreed performance. It is therefore not enough if it is impossible for only the particular contracting party to perform, nor is it sufficient in South African law if performance has merely become difficult or expensive. Whether performance has become objectively impossible is determined with reference to a standard of society (“’n verkeersmaatstaf”), which includes instances of actual physical impossibility and also instances where performance remains physically possible but cannot reasonably be expected to be rendered. A contractual party may be able to argue that, in the circumstances, requiring to perform would be so difficult that it would not be reasonable in the circumstances. The courts will not easily accept this, however, performance could also be considered objectively impossible even if it is physically possible where it is, for example, unlawful; and
- this entails that the impossibility that must be such that no one can tender the agreed performance. It is therefore not enough if it is impossible for only the particular contracting party to perform, nor is it sufficient in South African law if performance has merely become difficult or expensive. Whether performance has become objectively impossible is determined with reference to a standard of society (“’n verkeersmaatstaf”), which includes instances of actual physical impossibility and also instances where performance remains physically possible but cannot reasonably be expected to be rendered. A contractual party may be able to argue that, in the circumstances, requiring to perform would be so difficult that it would not be reasonable in the circumstances. The courts will not easily accept this, however, performance could also be considered objectively impossible even if it is physically possible where it is, for example, unlawful; and
- Impossibility must be unavoidable by a reasonable person:
- in this regard, it is often said that the impossibility must be the result of a force majeure or an “act of God”. This requirement implies that the impossibility must not be due to the fault of one of the parties. It must be due to an event that was objectively beyond that party's control. The mere fact that the disaster was foreseeable does not mean that the supervening impossibility of performance could not have arisen. The event may still be unavoidable by the reasonable person. It is safe to say that the effects of a pandemic such as the COVID-19 have been so unforeseeable and unavoidable and not anyone's fault, that they would, without any doubt, fall within the definition of an “act of God” or force majeure.
Supervening impossibility of performance affects not only the obligation that has become impossible but also any counter-obligations. Supervening impossibility of performance ordinarily terminates the obligation and therefore excuses the debtor from performing. The debtor may, however, agree to carry the risk of supervening impossibility by express or tacit agreement. Accordingly, every agreement needs to be carefully construed to determine whether this is the case. A court will always consider the nature of the contract, the relationship between the parties, all the circumstances of the case, and the nature of the impossibility involved.
Supervening impossibility of an obligation also generally excuses a creditor from rendering a counter-performance that is reciprocal to the performance that has become impossible. Extinction of the obligations then results in an obligation to return whatever was performed under the contract, which in turn is enforceable by an enrichment action.
The effect of partial or temporary impossibility of performance depends on the circumstances of the case. Where a divisible obligation becomes partially impossible to perform, the debtor will be released from those parts of the obligation that have become impossible to perform. Where an indivisible obligation becomes partially impossible, the creditor generally has an election whether to accept partial performance in return for a proportionally reduced counter-performance, or whether to escape from the contract.
If performance has become temporarily impossible, the general rule is that the obligation to perform is suspended until the impossibility disappears. However, if the impossibility continues for such a period of time that is not reasonable to expect the creditor to continue with the contract, the creditor will have a choice whether to terminate the contract.
In conclusion
Contractual law is always dependent on the background facts to the contract and the terms of the contract itself. This is accentuated in the complex realm of supervening impossibility of performance and force majeure. This area is going to become crucial for businesses as they try to survive the COVID-19, and legal advice should be sought to navigate through this complex area."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
31/03/2020
Philip Geromont, Director @ENSafrica has answering the question.
"On 23 March 2020, the President of South Africa issued a statement informing the public that a nationwide lockdown would be enacted in terms of the Disaster Management Act, 2002. The lockdown commenced at midnight yesterday, 26 March 2020, and is set to end at midnight on Thursday, 16 April 2020.
In terms of the statement, all shops and businesses are to remain closed during the lockdown period, except for pharmacies, laboratories, banks, essential financial and payment services, including the JSE, supermarkets, petrol stations and health care providers.
For those shops and businesses which are to remain closed and operate from leased premises, the question arises as to whether the business owners (being tenants), must continue to pay rent to their respective landlords during the lockdown period.
Indeed, during this period, affected tenants will be deprived of the beneficial enjoyment of the leased premises, as it has become legally impossible for landlords to perform their obligation to give undisturbed use and enjoyment of the leased premises to their tenants.
In South African contract law, a legal impossibility of this nature would generally fall into the category of force majeure or supervening impossibility events. When performance of a contractual obligation becomes impossible, the party responsible for rendering the performance is relieved of its obligation, for the duration of the impossibility, and the other party to the contract is likewise relieved of performing its reciprocal obligation.
In addition to the above general principle, South African law contains a doctrine specific to lease agreements. In terms of this doctrine, a tenant is entitled to claim a total or partial remission of rent if through vis maior (force majeure) it is unable to have undisturbed use and enjoyment of the leased property. In this regard, our courts have found that “A remission is claimable where the enjoyment of the property for the purposes for which it was let is hindered or prevented by some vis maior happening without the default, actual or constructive, of either party”. This quote was approved and applied by the Appellate Division in a case which makes it clear that an act of the legislature preventing performance qualifies as vis maior: “The intervention of the sovereign power, whether by legislation or by executive action, has the quality of vis maior”.
In the circumstances, tenants whose shops/businesses have to remain closed during the lockdown period, would, in principle, be released from their obligation to pay rent, either totally or partially, depending on whether they are totally or partially deprived of the enjoyment contemplated in the lease to which they are bound.
Tenants should, however, be aware that each lease agreement may contain specific provisions regulating force majeure and supervening impossibility events, in a manner that might derogate from the principles described above. Specific legal advice should therefore be obtained in each instance where a tenant wishes to claim remission of rent."
20/03/2020
Deanne Wood, Partner @Fasken's answer:
"It is impossible to give a catch all answer – in short it would depend entirely on what the contract says. If it provides for cover in these circumstances then there will indeed be cover. If cover is not provided for such circumstances then no claim will be possible. It therefore depends on the agreement concluded between the insurer and the insured at the start of the policy and whether the insurer has elected to take on that specific risk."
17/03/2020
ENSafrica's explanation:
"Repayment of bookings
In terms of section 27(5) of the Disaster Management Act, 2002, a national state of disaster lapses three months after it has been declared, but can be withdrawn or extended.
In the meantime, all public gatherings of more than 100 people are prohibited and all non-essential domestic travel – especially by air, rail, taxis and bus – are discouraged. This will have significant impact on the travel and events industry and a key question is whether consumers will be entitled to a full refund for prepaid bookings, tickets and the like.
This matter is largely regulated in terms of the Consumer Protection Act, 2008 (“CPA”) and South African common law of contract. While consumers may be entitled to a refund in terms of the CPA in certain circumstances, companies may, in turn, be entitled to cancel payments to their suppliers."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
16/03/2020
Katy-Lynne Kay, Partner @Fasken
Antoinette van der Merwe, Senior Associate @Fasken
have published a white paper answering the question.
"Covid-19 is spreading, and the mass hysteria and panic buying, are causing irreparable damage to the global economy. Currently, the only people resting easy at night are the manufacturers and distributors of hand sanitizer and face masks. Companies worldwide are distributing notices to their employees cancelling international travel, conferences, in person meetings, implementing their business continuity plans and giving detailed instructions on how to limit their employees’ chances of catching the virus. However, the biggest concern for many businesses, whether they be investors, borrowers, suppliers, service providers or contractors – is whether or not they have appropriate contractual rights to protect them during this period.
It is likely that businesses will start to receive (if they have not already) force majeure notices from their suppliers, contractors and service providers, especially if such entities are located in the Covid-19 “hotspots” such as China, Italy and Iran. The China Council for the Promotion of International Trade has issued numerous force majeure certificates to businesses in China affected by the Covid-19 outbreak.
If any of these downstream entities are successful at invoking force majeure it will suspend their obligations under their contract for so long as the force majeure event persists. Although this seems entirely reasonable in relation to the affected party, this may leave the counter-party in an untenable situation. For instance, in a project finance transaction, whilst it may be beneficial to a contractor under its construction agreements, the employer (as borrower) may not be as successful under its loan agreements, as the failure to make repayment of its loan is not usually a force majeure. Similarly, if you are a distributor of goods (such as medical supplies, textiles or equipment), your supplier may be able to successfully invoke a force majeure provision under the supply contract, but you may not be as successful under your distribution contract..."
Q&A: Questions from French Companies
19/05/2020
Business France's information in there news Covid-19 special.
21/04/2020
Les informations de Business France ci-dessous :
"Le document de synthèse, ci-après, est actualisé des dernières annonces du gouvernement issues du Conseil des ministres du 15 avril et des précisons apportées par G. Darmanin le 17 avril.
Il précise notamment :
- Le budget alloué au plan de soutien de l’économie française, de 45 à 110 milliards d’euros,
- L’ensemble des mesures de soutien à la trésorerie, de financement des entreprises et de l’évolution du droit du travail afin de préserver au mieux les emplois et les compétences
- Les dispositions relatives à la mobilité des travailleurs, fortement impactée par la fermeture des frontières de l’UE et le confinement des populations
Ce document est également disponible :
- En français : https://www.plateforme-attractivite.com/wp-content/uploads/2020/03/MESURES-D%E2%80%99ACCOMPAGNEMENT-DES-ENTREPRISES.pdf
- En anglais : https://www.plateforme-attractivite.com/wp-content/uploads/2020/03/GOVERNMENT-MEASURES-TO-ASSIST-COMPANIES-1.pdf"
16/03/2020
Romain Bauret, Area Manager - Africa @Bpifrance vous répond:
"Bpifrance se mobilise pour soutenir les entreprises.
Un plan exceptionnel est mis en place pour accompagner les dirigeants d’entreprises et soutenir leur trésorerie.
En effet, nous mettons à la disposition des PME et ETI françaises une gamme de garanties bancaires, de prêts Court Terme et Moyen Terme, portée par des procédures d’urgence pour une mise en place rapide :
- Nous garantissons votre banque à hauteur de 90% si elle vous fait un prêt de 3 à 7 ans
- Nous garantissons à hauteur de 90% votre découvert si votre banque le confirme sur 12 à 18 mois
- Nous vous proposons un prêt sans garantie sur 3 à 5 ans de 10 mille à 5 millions d’euros pour les PME, et plusieurs dizaines de millions d’euros pour les ETI, avec un différé important de remboursement
- Nous mobilisons toutes vos factures et rajoutons un crédit de trésorerie de 30% du volume mobilisé
- Nous suspendons les paiements des échéances des prêts accordés par Bpifrance à compter du 16 mars
- Enfin nous vous rappelons que vous pouvez demander le report des échéances fiscales et sociales et des remises d’impôts aux administrations et services concernées."
16/03/2020
La réponse de Business France ci-dessous:
"Business France assure une veille afin de garantir la sécurité des V.I.E affectés dans le monde, en lien étroit avec le Centre de Crise et de Soutien du Ministère de l’Europe et des Affaires Etrangères (MEAE).
Compte tenu de l’évolution de l’épidémie de Coronavirus Covid-19 et des mesures restrictives prises par certains pays à l’égard des voyageurs (interdiction d’entrée sur le territoire, isolement obligatoire, mesures de détection des symptômes, etc.) ; il est demandé à tous les V.I.E, dans toute la mesure du possible, de différer les déplacements professionnels ou personnels en dehors de leur pays d’affectation.
Business France recommande par ailleurs aux entreprises et aux V.I.E de respecter les recommandations mises à jour quotidiennement par le Ministère de l’Europe et des Affaires Etrangères sur son site internet : https://www.diplomatie.gouv.fr/fr/conseils-aux-voyageurs/conseils-par-pays-destination/
Et de consulter régulièrement :
- Le site du Ministère de la santé, récapitulant les informations sur cette épidémie, ce que l’on sait de son mode de transmission et les mesures prises à ce stade : https://solidarites-sante.gouv.fr/soins-et-maladies/maladies/maladies-infectieuses/coronavirus/coronavirus-questions-reponses
- Le site du Gouvernement dédié à l’évolution du Covid-19 : https://www.gouvernement.fr/info-coronavirus
Par ailleurs, il est important de garder à l’esprit, le risque d’une mise en quarantaine décidée par les pays visités ou par le gouvernement de votre pays de résidence au retour.
Business France recommande également aux Volontaires de se rapprocher de leur entreprise afin de faire un point sur la situation dans leur pays respectif.
Pour rappel, tout déplacement d’un V.I.E en dehors de son pays d’affectation doit faire l’objet d’une demande d’autorisation déclarée sous l’espace personnel Civiweb, validée par Business France. Tout déplacement doit également être autorisé par votre entreprise."
Q&A Immigration / Visa
02/07/2020
VFS is expected to open up from 1st July, but only for collection purposes. Submissions will only be permitted at Phase 2 of VFS opening up, which is expected on or about 1 August 2020.
Exceptionally, and due to covid situation and associated safety and security reasons, VFS has temporarily implemented appointment system for collection purposes. VFS has just provided a link to follow in order to book an appointment for collection > here.
More update to follow.
24/03/2020
Angelika Yakovchuk, Attorney at Law, Head of Immigration Department @WERTHSCHROEDER INC.'s answer:
"With an imminent lockdown, VFS offices country wide will stop operating from Thursdays, 26 March 2020 onwards, and until further notice (“Affected Period”). This will have an impact on foreigners who were intending to submit their immigration applications to ensure continuity of their temporary residence status in South Africa, which submission were planned in country during the Affected Period.
Immigration protocols prescribe a Letter of Good Cause in the circumstances whereby an applicant has valid reasons for failing to submit an application with a view of extending such applicant’s temporary residence status prior to expiry of the applicant’s visa. In such situation, a Letter of Good Cause request is a separate and the first procedural step to be undertaken by the applicant prior to submitting an immigration application.
The practical issue is that a Letter of Good Cause request may be subject to a delayed outcome of such request. Taking into account such practical challenges, the Department of Home Affairs has just confirmed that no Letter of Good Cause will be required in respect of applicants who were prevented from submitting their applications during the Affected Period and the expiry dates of their visas fall during the Affected Period."
19/03/2020
Angelika Yakovchuk, Attorney at Law, Head of Immigration Department @WERTHSCHROEDER INC.'s answer:
"Our Immigration Expert has been in communication with the Head Office of the Department of Home Affairs, following the Presidential statement on Sunday, 15 March 2020 on Covid-19 outbreak. We advise you that the Office of the Minister of Home Affairs has granted the below listed permission in so far as foreigners currently present in South Africa are concerned. The permission granted in terms of the Directive implements the following with immediate effect, and subject to further notices -
- Any foreign national who is already present in SA, and his/her home country is affected by the Covid-19 outbreak and whose visa is due to expire or had just expired, will be allowed to re-apply for such a visa, validity of a new visa is envisaged until 31 July 2020.
- Where an applicant is unable to meet one or more of the prescribed requirements for any temporary residence visa, he or she may apply to waive such requirement.
- Please note that above permission is not applicable to a foreigner whose passport contains evidence that he or she has visited Italy, Iran, South Korea, Spain, Germany, the United States of America, the United Kingdom, France, China or Switzerland since 15 March 2020.
Note: at the moment of this communication, countries that had been confirmed as high-risk are China, Italy, Iran, South Korea, Spain, Germany, the United States of America, the United Kingdom, France and Switzerland; and medium-risk are Portugal, Hong Kong and Singapore.
18/03/2020
SA Consulate in France is now closed, until further notice. No applications can be submitted, neither those that are pending can be released.
Q&A Lockdown
29/05/2020
Discover it by reading the full Level 3 regulations here.
01/04/2020
ENSafrica’s explanation:
"Now that South Africa is under lockdown for the next 21 days, as part of an organisation’s business continuity efforts, businesses will, to the extent possible, continue to run remotely. Two common legal issues that arise from remote working are:
- the electronic signing of agreements and instructions; and
- whether meetings can take place using technological means.
In this article, we touch on both issues.
Electronic signatures
Section 11 of the Electronic Communications and Transactions Act, 2002 (“ECTA“) provides for the legal recognition of data messages and states that “information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message”. Section 12 of ECTA further provides that “where it required that a document must be in writing that requirement is met if the document is in form of a data message, and accessible in a manner usable for subsequent reference.” This means that a document in an electronic format has legal force and may be binding.
In the event that a document needs to be signed, what is the legal force of an electronic signature?
Generally, a signature is a mark or sign made by a person on a document to indicate approval, acceptance, or obligation. It has the purpose of binding a person signing to the provisions contained in the document. For a signature to be valid in terms of South African law, three requirements must be met:
- the name or mark of the person signing must appear on the document;
- the person signing must have signed it; and
- the person signing must have intended to sign the document.
Section 1 of ECTA defines a electronic signature as “data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature”.
Section 13 of ECTA further expands on the use of electronic signatures and states that an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form. Where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if:
“(a) a method is used to identify the person and to indicate the person’s approval of the information communicated; and
(b) having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated”.
In the case of Spring Forest Trading v Wilberry, the Supreme Court of Appeal considered the question as to whether the name of a person at the end of an email can constitute an electronic signature for the purposes of ECTA. The court held that “as so long as the ‘data’ in an email is intended by the user to serve as a signature and is logically connected with other data in the email the requirement for an electronic signature is satisfied”.
Essentially, for a signature to be recognised as a valid electronic signature, it must be shown that there is a relationship between the sender’s identity and a person’s intent to sign the document. Where a party to a communication alleges that an email was sent fraudulently, in the recent judgment of Global & Local Investments Advisors (Pty) Ltd Appellant v Nickolaus Ludick Fouché, the Supreme Court of Appeal distinguished the facts of this case from the Spring Forest Trading decision and held that: “In the present case the emails in issue were in fact fraudulent. They were not written nor sent by the person they purported to originate from. They are fraudulent as they were written and dispatched by person or persons without the authority to do so. They are not binding…”
Important to note is that where the signature of a person is required by law and such law does not specify the type of signature, that requirement is only met if an advanced electronic signature is used. An advanced electronic signature which is defined as “an electronic signature which results from a process which has been accredited by the Authority as provided for in section 37”. To date, the South African Post Office and one other private body have been accredited by the Authority as such.
There are exceptions for certain types of agreements that may not be validly concluded electronically, such an agreement for the sale of immovable property, long-term leases of land exceeding 20 years, a will, and bills of exchange such as cheques.
Board meetings and shareholders’ meetings
The Companies Act, 2008 (the “Act”) allows board meetings and shareholder meetings to be conducted through electronic means unless the Act or Memorandum Of Incorporation provides otherwise.
Section 63 allows that a shareholders’ meeting can be conducted entirely by electronic communication; or one or more shareholders, or proxies for shareholders, may participate by electronic communication in all or part of a shareholders’ meeting that is to be held in person, as long as the electronic communication employed ordinarily enables all persons participating in that meeting to communicate concurrently with each other without an intermediary, and to participate reasonably effectively in the meeting.
If a company provides for participation in a meeting by electronic communication, the notice of that meeting must inform shareholders of the availability of that form of participation, and provide any necessary information to enable shareholders or their proxies to access the available medium or means of electronic communication. Access to the medium or means of electronic communication is at the expense of the shareholder or proxy, except to the extent that the company determines otherwise.
Section 73 of Act also provides that a meeting of the board may be conducted by electronic communication; or one or more directors may participate in a meeting by electronic communication, so long as the electronic communication facility employed ordinarily enables all persons participating in that meeting to communicate concurrently with each other without an intermediary, and to participate effectively in the meeting. With regard to a decision that could be voted on at a meeting of the board of that company, it may instead be adopted by written consent of a majority of the directors by electronic communication, provided that each director has received notice of the matter to be decided. A decision made in the manner contemplated in this section is of the same effect as if it had been approved by voting at a meeting."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
01/04/2020
ENSafrica’s explanation:
"In stark contrast to earlier media reports as to what would constitute “essential services”, the Regulations published in terms of the impending coronavirus (COVID-19) lockdown are far from clear and explicit when it comes to ICT, including datacentres, fibre optic infrastructure, towers and antennae.
Earlier media reports also appeared to provide clarity around what would constitute “enabling services”, and these initially included:
- call centres providing life and health; energy, food and water supply, social, transactional, communications, law and order and international critical business continuity services;
- professional and artisan services, to the extent that they are providing support in the COVID-19 response, essential and critical business continuity services;
- hotels, airlines, stadiums, car rental services, to the extent that they are supporting essential or critical business continuity services;
- communication and media services on screen, TV, radio, print, broadcast and online; and
- safety and security services protecting people and property.
Unfortunately, the Regulations do not provide such level of clarity and this has naturally created much uncertainty, especially in the ICT sector.
From an ICT perspective, the Regulations are explicit only on the following as constituting essential services or goods:
- Newspaper, broadcasting and telecommunications infrastructure and services; and
- Basic goods, including airtime.
Even with this clarity, it is still open to interpretation whether, for example, data centres are included in the ambit of telecommunications infrastructure and services. Further, having regard to the 27 other categories of essential services as well as the other categories of essential goods, in a world driven by IT, it can be argued that it is implicit that any ICT infrastructure, services and goods required for essential services to be rendered and for essential goods to be produced will fall within the category of essential goods and services. This is unfortunately open to interpretation as it is not explicit, and a case-by-case assessment would need to be undertaken by businesses."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
01/04/2020
ENSafrica’s explanation:
"No express exception was made in the lockdown regulations published on 25 March 2020 for businesses that can operate through telecommunications from the residences of staff members.
This has now been addressed through an amendment to regulation 11B(1)(b) published on 26 March 2020. The amended regulation reads as follows:
"During the lockdown, all businesses and other entities shall cease operations, except for any business or entity involved in the manufacturing, supply, or provision of an essential good or service, save where operations are provided from outside of the Republic or can be provided remotely by a person from their normal place of residence."
The amendment should be welcomed in that it clarifies that the lockdown does not prohibit remote work from home arrangements."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
26/03/2020
ENSafrica’s explanation:
“Essential goods” are broadly defined as:
- Any food product (including animal food and non-alcoholic beverages);
- The chemicals, packaging and ancillary products used in the production of any food product;
- Cleaning and hygiene products including the chemicals, packaging and ancillary products used in the production of these goods;
- Medical and hospital supplies and the chemicals and packaging used in the production thereof;
- Fuel, including coal and gas; and
- Basic goods, including airtime and electricity.
“Essential services” include the existing essential services as defined in terms of the Labour Relations Act, 1995, as well as:
- Medical, health, laboratory and medical services;
- Disaster management, fire prevention, firefighting and emergency services;
- Financial services necessary to maintain the functioning of the banking and payments environment, including the JSE and similar exchanges, as well as insurance services;
- Production and sale of essential goods;
- Grocery stores, including spaza shops;
- Electricity, water, gas and fuel production, supply and maintenance;
- Essential municipal services;
- Care services and social relief of distress provided to older persons, the mentally ill, persons with disabilities, the sick, and children;
- Funeral services, including mortuaries;
- Wildlife management, anti-poaching, animal care and veterinary services;
- Newspaper, broadcasting and telecommunications infrastructure and services;
- Production and sale of any chemicals, hygiene products, and pharmaceuticals for the medical or retail sector;
- Cleaning, sanitation, sewerage, waste and refuse removal services;
- Services related to the essential functioning of courts, judicial officers, the Master of the High Court, sheriffs and legal practitioners required for those services;
- Essential SARS services defined by the Commissioner of SARS;
- Police, peace officers, traffic officers, military medical personnel and soldiers, correctional services officials and traffic management services;
- Postal services and courier services related to the transport of medical products;
- Private security services;
- Gold, gold refinery, coal and essential mining;
- Accommodation used for persons rendering essential services, quarantine, isolation and the lockdown;
- Production, manufacturing, supply, logistics, transport, delivery, critical maintenance and repair in relation to the rendering of essential services including components and equipment;
- Transport services for persons rendering essential services and goods, and transportation of patients; and
- Transport and logistics in respect of essential goods as set out in A above to neighbouring countries."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
26/03/2020
ENSafrica’s explanation:
"The following places and premises are closed to the public:
- Any place or premises normally open to the public where religious, cultural, sporting, entertainment, recreational, exhibitional, organisational or similar activities may take place;
- Any place or premises normally open to the public where goods other than essential goods are procured, acquired, disposed of or sold; and
- any place or premises normally open to the public such as:
- public parks, beaches and swimming pools;
- flea markets;
- open-air food markets;
- fetes and bazaars;
- night clubs;
- casinos;
- hotels, lodges and guest houses, except to the extent that they are required for remaining tourists confined to hotels, lodges and guest houses;
- private and public game reserves except to the extent that they are required for remaining tourists confined to private and public game reserves;
- holiday resorts except to the extent that they are required for remaining tourists confined to such holiday resort;
- on-consumption premises, including taverns, shebeens, and shisanyama where liquor is sold;
- off-consumption premises, including bottle stores, where liquor is sold;
- off-consumption areas in supermarkets where liquor is sold;
- theatres and cinemas;
- shopping malls and centres (excluding grocery stores and pharmacies);
- taxi ranks, bus depots, train stations and airports; and
- any other place or premises determined by the Cabinet member responsible for cooperative governance and traditional affairs by direction in the Gazette."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
26/03/2020
ENSafrica’s explanation:
"Regulation 11B contains far-reaching restrictions on the movement of persons and goods. The following are some of the more important aspects:
- Every person is confined to his or her place of residence unless it is strictly necessary to leave the residence for purposes of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life-saving, or chronic medical attention.
- Every “gathering” is prohibited, except for funerals. A gathering is defined as “any assembly, concourse or procession of more than 100 persons, wholly or partially in the open air or in a building or premises”. The number of persons who may attend the funeral is limited to 50. No night vigils must be held and all safety measures must be complied with.
- Movement between provinces is prohibited.
- Movement between the metropolitan and district areas is prohibited.
- Any person who fails to comply with the above prescriptions commits a criminal offence and, on conviction, will be sentenced to a fine or imprisonment not exceeding six months or to both such fine and imprisonment.
- All borders of South Africa will be closed except for the transportation of fuel and essential goods. However, permission may be granted to a person to enter South Africa for medical attention for a life-threatening condition. Foreign tourists who have remained in South Africa must remain in their places of temporary residence. They may be subjected to screening for the Coronavirus and be quarantined or isolated.
Regulation 11B also provides for the closure of businesses and premises:
- All businesses and other entities must cease operations during the lockdown, except for businesses or entities involved in the manufacturing, supply, or provision of an essential good or service.
- Retail shops and shopping malls must be closed, except where essential goods are sold and on condition that the person in control puts in place controls to ensure that customers keep a distance of at least one square meter from each other and that all directions in respect of hygienic conditions and the exposure of persons to the Coronavirus are adhered to.
- A retail store selling essential goods is prohibited from selling any other goods.
- Any place not involved in the provision of an essential good or service must remain closed to all persons for the duration of the lockdown
- The regulations contains an extensive list of places and premises that must be closed to the public except to those persons rendering security and maintenance services at those places or premises (see question above). Any person who fails to comply with this requirement commits a criminal offence and, on conviction, will be sentenced to a fine or imprisonment not exceeding six months or to both such fine and imprisonment.
The regulations also place important obligations on the heads of “institutions” that are engaged in the supply or distribution of an essential good or service.
- The head must determine the essential services to be performed by his or her institution and must determine the essential staff who will perform those services. This function can be delegated.
- The head must designate persons performing essential services in writing. A specific form is prescribed in this regard.
- All persons performing essential services, obtaining essential goods or seeking medical attention, may be subjected to screening for the Coronavirus by an enforcement officer."
>> Contact: Philip Geromont, Executive | Corporate Commercial @ENSafrica, pgeromont@ENSafrica.com
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