COVID-19 and Employment Law in South Africa: Comparative Perspectives on Selected Themes

• Pages: 25-55
• Citation: (2021) 33 SA Merc LJ 25
• Date: 22 October 2021
• Author: Ndlovu, L.
• DOI: https://doi.org/10.47348/SAMLJ/v33/i1a2
• Published date: 22 October 2021

25

https://doi.org/10.47348/SAMLJ/v33/i1a2

* LLB, LLM (Fort Hare), LLD (Unisa).

† LLB, LLM (NWU), LLD (Unisa).

COVID-19 AND EMPLOYMENT LAW

IN SOUTH AFRICA: COMPARATIVE

PERSPECTIVES ON SELECTED THEMES

LONIAS NDLOVU*

Associate Professor & Dean: School of Law, University of Venda

CLARENCE ITUMELENG TSHOOSE†

Professor of Labour & Social Security Law, School of Law, University

of Limpopo

Abst rac t

Public health emergencies such as the novel coronavirus (COVID-19),

which was elevated to a global pandemic, usually have severe implications

for people in various spheres of life. For example, people’s employment and

social welfare are aected. In this paper, the authors explore the possible

implications of COVID-19 on the rights of employers and employees in

South Africa. e issues that need to be considered include leave when

employees elect to stay at home as a precautionary measure against

contracting the coronavirus at work, the enforcement of employment

contracts, employment security, workplace discipline, working hours,

absenteeism, and the employer’s duty to provide the employees with a

safe working environment. Using a doctrinal legal research method, the

article provides an analysis of the applicable laws and cases from South

Africa and related jurisdictions. e comparative content, analysis of

legislation, case law, and sector-specic guidelines show that COVID-19

has and will continue to have a signicant impact on the employment

laws as reected in dierent jurisdictions. Although employment law is

generally jurisdiction-specic, there are many commonalities in the laws

of dierent countries, both on the African continent and globally. It is also

important to note that the existing employment laws need to be adjusted

in order to accommodate the eects of the pandemic. For example, South

Africa can draw valuable lessons from other jurisdictions on how to deal

with employment matters during a pandemic, and therefore COVID-19

presents the country with an opportunity to develop both its employment

laws and the common law.

Keywords: COVID-19, employment law, public health, social welfare,

employees, employers

(2021) 33 SA Merc LJ 25

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https://doi.org/10.47348/SAMLJ/v33/i1a2

26 (2021) 33 SA MERC LJ

I INTRODUCTION

Aer the Spanish f‌lu pandemic of 1918,1 it was not expected that another

pandemic as severe as COVID-19 would ensue globally and prove to

be fatal.2 Phillips notes that the calamity of COVID-19 is comparable

to the Spanish u,3 and has been characterised as the most devastating

pandemic of modern times. As of 22 September 2021, the pandemic had

claimed the lives of almost 5 million people worldwide.4 e pandemic

has already claimed the lives of over 86 000 people in South Africa,5 and

the number of cases is expected to rise.

e origin of the COVID-19 pandemic can be traced back to the end

of December 2019 when clinicians in a hospital in Wuhan City, Hubei

Province, China, noticed an unusual outbreak of pneumonia cases.6 e

contributory organism has now been identied as a novel coronavirus

of zoonotic origin.7 e World Health Organization (WHO) was noti-

ed on 31 December 2019 about this pandemic.8 e rapid spread of

the virus in China saw about 50 million people placed under quaran-

tine in Wuhan and neighbouring cities by 23 January 2020. e WHO

cautiously restrained itself from declaring a public health emergency

of international concern and did not recommend any specic travel

restrictions.9 It was only on 30 January 2020 that the WHO declared

1 Alexis, ‘Susceptible-Infected-Recovered (SIR) dynamics of COVID-19 and eco-

nomic impact’ (2020) Economics, Vetted and Real-Time Papers 1–15. See also Muhammed

Bin Hassim Mohamed v Anas Mohammed Chothia [case number 21402/20] (30/4/2020)

[High Court] para 6.

2 Jackson et al, ‘Global economic eects of COVID-19, Congressional Research Service’

(2020) 4-72, available at https://fas.org/sgp/crs/row/R46270.pdf, accessed on 29 March 2020.

3 Phillips, ‘South Africa bungled the Spanish u in 1918 …’ (2020) e Conversation, avail-

able at http://conversation.com, accessed on 29 March 2020.

4 Worldometer ‘COVID-19 Coronavirus pandemic’, available at https://www.worldom-

eters.info/coronavirus, accessed on 21 September 2021.

5 National Institute for Communicable Diseases (NICD), available at https://www.nicd.

ac.za, accessed on 21 September 2021.

6 McCloskey & Heymann, ‘SARS to novel coronavirus – old lessons and new lessons’ (2020)

Epidemiology and Infection 148, available at https://pubmed.ncbi.nlm.nih.gov/32019614/,

accessed on 21 May 2020.

7 McCloskey & Heymann, (2020) Epidemiology and Infection 149.

8 McCloskey & Heymann, (2020) Epidemiology and Infection 149.

9 e declaration however materialised on 30 January 2020 at the second meeting of the

Emergency Committee convened by the WHO Director-General under the International

Health Regulations (IHR) (2005) regarding the outbreak of novel coronavirus 2019 in the

People’s Republic of China, the full text of which is available on the WHO website (see

WHO Statement on the second meeting of the International Health Regulations Emergency

Committee regarding the outbreak of novel coronavirus (2019-nCoV), available at https://

www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-

international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-

of-novel-coronavirus-(2019-ncov), accessed on 27 March 2020).

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