Covid-19: Lockdown laws – the unanswered questions

What happens if specific time limits are imposed for action to be taken in terms of acts, by-laws, regulations, policies and other instruments and adherence to these time limits is impacted by the lockdown? We simply don’t know across the board

Whilst various regulations and directions have been issued in relation to Covid-19 and the duties of public bodies (government departments, municipalities, institutions, entities, statutory bodies and authorities etc), such regulations and directions are primarily aimed at ensuring compliance by and capacitating these bodies to comply with their duties. Public bodies are primarily creatures of statute and as such the various acts, by-laws, regulations, policies and other instruments that govern them prescribe and/or impose various time limits. Except for a few specific instances, such as the regulations extending licensing and registration periods in respect of driver's licenses and renewals published by the Minister of Transport, and the extensions relating to licences and environmental authorisations, exemptions and reporting by the Minister of Forestry, Fisheries and the Environment, there appears to be no blanket regulation or fit-for-all measure in place dealing with these prescribed time periods, and in particular where no provision is made for the extension or suspension of the relevant time periods in relevant legislation or other statutory instruments.

This begs the question of what happens if specific time limits are imposed for action to be taken in terms of acts, by-laws, regulations, policies and other instruments and adherence to these time limits is impacted by the lockdown. These instances ordinarily involve applications for approvals, authorisations, consents or permits, the lodging of objections and appeals against decisions, the submission of tenders, the submission of mandatory documents, instances where positive action is required in order to timeously act on an approval or authorisation in order to give effect thereto. More specifically: What happens in the case of an applicant for approval, authorisation or a permit where the relevant time period commenced prior to lockdown and expires during lockdown? What happens in the case where the time period commences during lockdown and ends shortly thereafter?  What happens if the period commences during and runs out during the lockdown period?  What happens if the time period commenced prior to and expires after lockdown, but due to the lockdown the relevant person has had no beneficial use of the time and/or was unable to use it effectively or to consult on the matter?

Does it mean that if the required action is not and cannot be carried out timeously due to the lockdown, a party simply forfeits its rights and/or entitlement and the potential disadvantage and prejudice that a party may suffer must simply be ascribed to the lockdown? What happens if the relevant legislation does not afford the public body the discretion to extend or suspend time periods - does this mean that the time periods will simply apply and be enforced without any regard to the effect of the lockdown?  What should a public body do in these scenarios? Will processes of public bodies embarked upon and affected by the lockdown in this way withstand scrutiny and/or will such processes be susceptible to challenge?

Typical practical scenarios would be the following:

Scenario 1: A tenderer has been informed on 24 March 2020 that its tender was unsuccessful and that it has 14 days to object or appeal against the decision, which period for objection or appeal expires during the lockdown and in the absence of an objection or appeal, the preferred tenderer will be appointed and/or its appointment will take effect.

Scenario 2: A significant land development application is approved prior to the lockdown, which approval is subject to any appeals and the appeal period expiries during the lockdown.  This will leave the applicant (developer), who may wish to appeal against specific conditions as well as any other party, who may wish to appeal against the approval, without recourse.  The same applies in the event that a land development application is advertised for objections, the objection period expires during the lockdown and the application is approved as a result of no objection having been made.

Scenario 3: An individual holds a permit in terms of legislation such as a by-law which permit expires during and has to be renewed during the lockdown, however the deemed validity provisions of specific regulations are not applicable and/or extended to this specific permit holder with the result that the permit holder effectively loses the permit.

What is clear is that there is no general and/or fit-for-all approach, which can arguably be provided for under the powers in the Disaster Management Act 57 of 2002, which creates a grey area for now to the extent that no specific regulations have been made. If no clear approach (similar in form to the concept of dies non employed by the Courts where time periods are suspended during a specific time) is sanctioned and specific regulations are made on an incremental basis, it may well be that certain cases/scenarios, in particular those that are regulated across different spheres of government by different forms of legislation, may end up not being catered for.  Moreover, those matters in respect of which no specific regulations have been made, will likely have to be handled on a case-by-case basis and each case will require careful consideration of relevant factors and a careful assessment of the relevant facts and circumstances as well as applicable statutory and legal principles.  This will result in different and contradictory interpretations, cause uncertainty and likely a myriad of court proceedings which will ultimately be costly and impact negatively on resources which are already depleted as a result of the impact of Covid-19.

Until such time as more clarity is obtained, and in the absence of specific regulations, affected parties will need to be pro-active in safeguarding their rights and/or interests by inter alia notifying the relevant bodies, recording their difficulties experienced and reserving their rights to the extent that they may or may have been prejudiced.  Doing so will also, at the very least, alert the relevant bodies to the areas that need to be addressed insofar as time periods are concerned, be it in the form of specific regulations or a possible general and/or fit-for-all approach.