We have recently been bombarded with questions concerning obligations of Scheme Executives of Community Schemes and how they should manage members of their Community Schemes and enforce Regulations (the “Regulations”) under the Disaster Management Act.
We were called upon to advise what disclaimer notices should be installed at the entrance gates of a Community Scheme and how Scheme Executives can avoid liability where a person contracts the Coronavirus within a Community Scheme.
The answer to both questions is simple. Community Scheme Executives are not law enforcement officers and the COVID-19 Regulations apply to all persons. On the second question, it would simply be impossible to prove that a person contracted the Coronavirus within a specific Community Scheme.
It is however the duty of Scheme Executives to ensure that they comply with the Regulations as far as employees and/or contractors are concerned and not to allow members to transgress the Regulations. Where a person transgresses the Regulations, such member can be reported to the relevant authorities.
Scheme Executives can make and implement Rules and/or measures in order to comply with the Regulations. The specific circumstances, available amenities, common areas and movement of members within a Community Scheme must be considered in order to implement appropriate and reasonable measures and/or rules which are not in conflict with the Regulations and there is not a “one size fits all”-set of Rules.
The Regulations may also be amended from time to time and Scheme Executives are best advised to receive appropriate guidance and advice when implementing any additional rules and/or directives.
As a general guideline, the following measures can be considered:
1. Disclaimer:
In addition to any existing disclaimer notice, this notice can be supplemented to advise at any entrance to the Community Scheme that the Regulations are to be adhered to, in addition to any directives as may be issued by Scheme Executives, that any transgression will be reported to the authorities and that no entry will be allowed if co-operation is not received.
2. Security:
Security protocol should be the same as prior to lockdown. It is not the responsibility and/or within the authority of Scheme Executives and/or security to enforce Lockdown Regulations.
Security services are usually contracted out and Scheme Executives should ensure that the security contractor complies with the Regulations. Security guards should therefore comply with to the Regulations concerning wearing of masks, adhere to social distancing, etc.
Although not required, it is advisable to implement hand-sanitation where contact is required for completion of registers. It is not the duty of security or Scheme Executives to enforce “self-assessment” and/or to take temperature readings.
3. Movement and common areas:
Common areas should be closed to the extent required in terms of Regulations in order to avoid any gathering and where there is opportunity for the Regulations to be contravened. As stated, the available open space, common property facilities and amenities will dictate what freedom of movement on common property should be allowed.
As a general rule, streets and open areas within Home Owners Associations should be regarded as “public areas” where the Regulations apply, but again, other considerations may be applicable such as ownership of the common areas, any zoning conditions and again, available amenities and movement space.
4. POPI Act, where a person contracted the Coronavirus:
Scheme Executives should take caution not to publicize personal information of persons who are presumed to have contracted the Coronavirus, as information may be false and/or may lead to contravention of the POPI Act and/or damages claims.
They must obviously inform any of their employees, such as cleaners and/or caregivers of any increased risks and should receive assistance from the relevant authorities if they have reasonable suspicion of an infection and deem it necessary to implement further measures.
5. Employees and contractors:
Scheme Executives should ensure that their employees are provided with the required personal protection equipment (sanitation, masks, etc.), that temperature readings are taken and self-assessment questionnaires be completed and/or any other Regulatory requirements be complied with.
They should also ensure that their contractors comply with the Regulations.
6. Reporting:
Where there is any suspicion of an infection of the Coronavirus, then required action should be taken and staff members must be placed on sick leave and all staff members who may have had contact with such employee, must be tested and placed on sick leave.
Again, it is essential and in order to avoid any claims or liability, that any such incidents be reported to the authorities.
7. Business activities:
In most Community Schemes it is prohibited to conduct any business activities from a unit or erf. The Covid-19 Regulations forced many people to work from home. The mere working from home does not constitute a “business activity”.
If a person is required to meet with clients or customers at home, then such activities can be considered “business activities”.
We can expect to live with Covid-19 for a long time, if not for years to come and Scheme Executives are best advised to consider and formulate appropriate and reasonable rules in order to allow and manage business activities within a Community Scheme.
Security, parking, available amenities, Municipal By-laws and zoning conditions will again be important factors to be taken into account and it may well be that certain business activities can simply not be accommodated.
Again, Scheme Executives would be advised to act reasonably and to receive appropriate legal advice in formulating rules.
Elmo-York Stuart - Directo