Further Amendments and Relaxation of Lock-down
In the past ten days four statutory instruments [SIs] were published in the Gazette amending the regulations and orders relating to the Covid-19 national lock-down. The four, all of which are available on the Veritas website, are:
- The Public Health (COVID-19 Prevention, Containment and Treatment) (Amendment) Regulations, 2020 (No. 4) (SI 134 of 2020) [link]
- The Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) (Amendment) Regulations, 2020 (No. 2) (SI 135 of 2020) [link] and
- The Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (Amendment) Order, 2020 (No. 10) (SI 136 of 2020) [link]
- The Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (Amendment) Order, 2020 (No. 11) (SI 144 of 2020) [link]
We shall explain each of them in turn. To avoid repeating their excessively long titles we shall refer to them by their SI numbers, giving a brief indication of their topic.
SI 134 of 2020 [Regulations on Covid-19 to be made by Minister not President]
This SI makes a small but legally significant amendment to the regulations under which the Lock-down Order was made.
Section 8 of the regulations gives the Minister of Health and Child Care power to publish orders in the Gazette enacting measures, including lock-down, to deal with the Covid-19 pandemic. Before the new amendment, the section stated that when making these orders the Minister had to consult the President and act in conformity with any directives the President might give him. The amendment will remove that requirement.
The SI does not explain why the amendment is being made but it is probably because, as we pointed out in Bill Watch 15/2020 of the 15th April [link], the Public Health Act gives the Minister, not the President, power to make statutory instruments, so the Minister cannot be compelled to make them by the President. If he makes an instrument under direction from the President, therefore, the instrument will be unlawful.
The amendment will cure this defect, but it will not validate any orders the Minister may have made previously under Presidential direction.
SI 135 of 2020 [Deferment of Rent and Mortgage Payments]
In SI 96 of 2020 [link] the President enacted regulations under the Presidential Powers (Temporary Measures) Act which allowed tenants and mortgagors to defer paying rent and paying off their mortgages until after the national lock-down ended, when they would be given time to pay their arrears.
The lock-down seems likely to continue in force for a long time to come, so SI 135 imposes a cut-off date of the 30th June on the deferment of rents and mortgage payments. This means that from the 1st July onwards:
- Tenants and mortgagors will have to resume paying their rent and making their mortgage payments in accordance with their leases and mortgage agreements, and
- Any payments they did not make from the 1st April 2020 (which is when the lock-down is deemed to have begun) until the 1st July (when the lock-down is deemed to end) will have to be repaid in three equal instalments: see sections 5 and 6 of the regulations. This means that if, for example, a tenant has not paid any rent for the months of April, May and June (the whole period of the lock-down) he or she will have to pay off the arrears (i.e. the unpaid rent for the period of the lock-down) in nine equal instalments over nine months ending on the 28th February next year.
These payments will have to be made even if the lock-down is still in place.
Note, however, that the provisions for paying off arrear rent and mortgage payments over nine months may be ineffective because the regulations themselves will expire before then. The regulations were made on the 29th April, 2020, and in terms of section 6 of the Presidential Powers (Temporary Measures) Act, they will expire on the 26th October, whereupon the laws which were suspended by the regulations ‒ i.e. the laws of lease and mortgage ‒ will once again have full force. Hence, unless the regulations are replaced with some permanent legislation – for example, an Act of Parliament – tenants and mortgagors who have not repaid their arrears by the 26th October may find themselves facing court proceedings for recovery of the balances they owe. For mortgagors of commercial and industrial properties for which high rents are paid, this may be a problem.
SI 136 of 2020 [Informal Traders]
The main effect of this SI is to amend the Lock-down Order (SI 83 of 2020) so as to give some people employed or engaged in the informal sector a limited right to resume their business.
Informal traders who are allowed to resume trading
Only informal traders are allowed to go back to work, and only if they are paying presumptive tax [a form of income tax payable by low-income earners] in terms of the Income Tax Act. More specifically, they must meet the following criteria:
- First of all, they must be informal traders ‒ and the definition of that term is restrictive. It includes hawkers, street vendors and people who sell goods at flea markets, but it excludes small-scale miners, taxi and combi drivers, cross-border traders, people who run food and drink outlets, and cottage industry operators. This last term “cottage industry” is defined in the Income Tax Act to cover furniture makers, upholsterers and metal workers. No one in these excluded categories of people is allowed to go back to work.
- Secondly, they must be small-scale: they must be earning less than ZW$60 000 a year.
- Thirdly, as we have said, they must be paying presumptive tax in terms of the 26th Schedule to the Income Tax Act through their local authority or other person to whom they pay rent for their homes or business premises.
Informal traders who meet these criteria can resume their occupations under the same conditions as people employed in the formal sector; that is to say:
- They have 14 days within which to get themselves and their staff screened and tested for Covid-19. The tests can be done using rapid results diagnostic tests or other tests approved by the Minister of Health and Child Care.
- The results of the tests must be kept available for inspection for so long as the declaration of Covid-19 as a formidable epidemic disease remains in force [currently until the 1st January 2021].
- If permitted to do so by Ministerial order, an enforcement officer (a government or local authority health officer, a police officer or a member of the security forces) can direct informal traders to conduct further tests on their staff at intervals of 30 working days or longer.
- They must ensure that they and all their staff have their hands sanitised and their temperatures checked on entry into their workplaces. They must also maintain social distancing while in their workplaces.
- Their businesses must not open before 8 a.m. and must not stay open after 4:30 p.m.
SI 136 of 2020: [Other Provisions]
SI 136 of 2020 makes other amendments to the lock-down order, including the following:
- The work of Parliament is classified as an essential service. Up to 50 people can attend public hearings conducted by its committees, but they must all wear face masks, observe social distancing and have their hands sanitised. The premises where the hearings are conducted must be disinfected between hearings.
- Drivers of goods vehicles who carry passengers, and truck drivers who deviate from their routes, will be liable to severe criminal sanctions ‒ up to a year in prison.
- Up to 50 adults (presumably with their children) are allowed to gather for prayer at places of worship so long as they wear face masks, observe social distancing and have their hands sanitised. The premises where they gather must be disinfected between services.
- Officials are entitled to take custody of the passports and identity documents of returning residents while they are under quarantine ‒ presumably to deter them from running away from quarantine centres.
- Truck drivers entering Zimbabwe and arriving foreigners must have certificates showing they are free from Covid-19, and must submit to screening and testing for the disease. If they test positive, they must submit to being quarantined.
- Restaurants and hotels that are allowed to provide take-away food must provide chairs for elderly patrons to wait for their orders, and must comply with strict rules for sanitising, disinfection and the wearing of face masks and gloves.
SI 144 of 2020 [Extension of Certain Driving Licences and Certificates]
The amendment to the Lock-down Order made by this SI extends the validity of learners’ drivers licences (which normally expire after a year) and defensive driving certificates (which omnibus drivers must have). Existing learners’ licences and defensive driving certificates which expire during the lock-down will remain valid for a further six months or until the lock-down ends, whichever is the earlier. Also, public service vehicle drivers who are due to be re-tested during the lock-down will be able to continue driving without being re-tested until the Minister of Transport fixes a date or dates for them to undergo testing. Although the amendment is not entirely clear on the point, it probably applies to licences and certificates which have already expired.
[Two comments here: First, the Minister of Health and Child Care probably does not have power under the Public Health Act to extend the validity of licences and certificates under the Road Traffic Act; that is more properly the function of the Minister of Transport under the latter Act. Secondly, the amendment may not achieve its apparent purpose, namely to prevent learner drivers and omnibus drivers risking infection by taking driving tests during the lock-down. As the amendment is worded, their licences and certificates will expire either during the lock-down (if it lasts for more than six months) or immediately the lock-down ends (if it lasts for less than six months). Either way, if the drivers want to extend their licences or certificates, they will have to take their driving tests during the lock-down.
Consolidated Versions of SIs
Consolidated versions of the following documents, incorporating the latest amendments, are available on the Veritas website: the Covid-19 regulations [link], the Presidential Powers regulations [link] and the Lock-down Order [link].
Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.