I have been approached by various clients for an opinion on the meaning of the words “residence” or “place of residence” as used in the lockdown regulations, which appear to be causing much debate, particularly in regard to the use of common property in private residential estates such as sectional titles with bodies corporate, gated communities of free standing properties with home owners associations and mixed developments constituting a combination of the two.

The use of common property by residents in private residential estates is generally governed by management /house rules in the case of sectional title developments and constitutions in the case of home owners associations. These rules and constitutions cannot be unilaterally changed by trustees of bodies corporate or directors of section 21 companies, and such rules generally prescribe procedures that have to be followed in making any amendments e.g. the convening of special meetings with owners, quorum requirements and voting procedures.

It is important to grasp the fact that legally, if the lockdown regulations prohibit any act in an estate or on common property in an estate, then such prohibition automatically supersede and therefore outlaw any act that is otherwise allowed in terms of the management rules or constitutions of a particular estate.

The meanings of the words “residence” or “place of residence” are not defined in the regulations and such words and phrases are obviously capable of different meanings, for instance and without going into a lengthy exposition, residence could mean just a dwelling (the building) or it could mean something more than that for example a suburban house, including dwelling and garden, it could mean a farm comprising of a farm house and farm lands, a residence in a gated community comprising of dwellings, exclusive use areas and common property within the gated community.

Only the courts can legally pronounce on the meaning to be attributed to the words “residence” or “place of residence” in the context of the lockdown regulations and my opinion that follows is accordingly what I believe a court of law would hold in regard to the legal interpretation of these words.

The lockdown regulations were promulgated on the 25th of March 2020, by the Minister of Co-operative Governance and Traditional Affairs (the Regulations) following a national disaster declared under and in terms of the Disaster Management Act 57 of 2002 (the DMA), the disaster being the Covid-19 pandemic. The most important section of the DMA is Section 27. This section appears on pages 15 and 16 – https://www.gov.za/sites/default/files/gcis_document/201409/a57-020.pdf

In summary, Section 27 basically provides that the Minister may declare a national state of disaster if existing legislature and contingency arrangements do not adequately provide for the national executive to deal effectively with the disaster or, other special circumstances warrant the declaration of a national state of disaster. Further, the Minister is empowered subject to certain restrictions after consulting responsible cabinet ministers to make regulations or issue directions or authorise the issue of directions concerning certain defined aspects (see Section 27(2)) such as the regulation of the movement of persons and goods to and from or within the disaster-stricken or threatened area (see Section 27(2)(f)) and steps that may be necessary to prevent an escalation of the disaster or, to alleviate, contain and minimise the effects of the disaster (see Section 27(2)(n)).

It is also important to note that Section 27(3) restricts the Minister’s powers in the sense that the regulations and directives can only be made or given to the extent that they are necessary for the purposes of:

  1. assisting and protecting the public;
  2. providing relief to the public;
  3. protecting property;
  4. preventing or combating disruption; or
  5. dealing with the destructive and other effects of the disaster.

In my opinion, this particular subsection would give a court authority to determine whether any Regulations promulgated or directives given are necessary (reasonable).

So, what do the Regulations stipulate?

The consolidated Regulations are found here – http://sacoronavirus.co.za/wp-content/uploads/2020/04/Consolidated-Regulations-DMA-17-April.pdf, which I recommend be perused with this opinion.

In summary, and in the first instance, the regulations prohibit any gatherings (except for a funeral as specifically provided for in sub regulation 8), in or on any public road, or any other building, place or premises, including or partly in the open air and including but not limited to any premises or place used for any sporting, entertainment, recreational, religious or cultural purposes.

Secondly, every person (i.e. individual) is confined to his or her place of residence, unless strictly for the purposes of performing an essential service, obtaining an essential good (e.g. food) or service, collecting a social grant or seeking emergency, life-saving or chronic medical attention during the lockdown.

“Lockdown”, according to the definition under the regulation means the restriction of movement of persons during the period of lockdown and “movement” means “entering or leaving a place of residence or, in the case of people not ordinary resident in the Republic, their place of temporary residence while in the Republic”.

Accordingly, gatherings as defined are prohibited anywhere, irrespective of whether we are dealing with public property or private property and because a residence or place of residence is private property, it is quite clear that you cannot have gatherings at a residence or place of residence.

Whilst the word “gathering” was clearly defined, the meaning of the words “residence” and “place of residence” were not defined in the regulations with reference to entering or leaving a place of residence, or indeed, confinement to a place of residence. So, is “residence” or “place of residence” just a building or dwelling? If it is, then a resident in a suburban home is prohibited for example, from watering his lawn, tending his vegetable garden and exercising in his yard because this would constitute leaving the dwelling for purposes other than specifically allowed under the regulation.

On the other hand, if the word “residence” means the entire property comprising the suburban home, namely the dwelling and garden, then such actions are not prohibited.

Similarly, if in the case of a sectional title block of flats if the word “residence” means only the actual dwelling .i.e. the flat but not the passage way from the entrance to the flat and any common property such as a yard or garden or parking areas, then, leaving the residence to collect post, throw rubbish in bins and even to get fresh air is prohibited because it is not strictly for the specific purposes allowed under the regulations.

In the same vein and in relation to a gated estate, if residence just means the dwelling (or possibly even the dwelling and exclusive use area), then going outside the dwelling and traversing the common property to fetch post or engage in solitary physical exercise, is also prohibited because the resident in question would have left his or her place of residence for purposes other than those specifically defined as stated above. If the word “residence” or “place of residence” is given a broader meaning as set out in the examples above, then the relevant acts mentioned in such examples are not prohibited by the regulations.

So, whilst, one is prohibited from leaving a residence or place of residence to ride, bicycle, jog or walk a dog, because this would entail leaving the residence for purposes other than performing an essential service, obtaining an essential good or service, collecting a special grant or, to seek emergency, life-saving or chronic medical attention, such actions are not prohibited at a person’s residence or place of residence. Bearing in mind what I have said above, that where legislation (or regulations like these) prohibit any action which would otherwise be lawful, then any action which is not prohibited by the legislation or regulations in question and which is otherwise lawful, is therefore allowed.

So, how we interpret the word “residence” or “place of residence” in relation to what is prohibited and not prohibited is vital.

(As I have mentioned, the courts have the sole authority to make case law in regard to interpreting legislation. That right is not open to trustees, managing agents and even policemen).

In the case of Natal Joint Municipal Pension Fund vs Endumeni Municipality (2012)(4) SA 593 (Supreme Court of Appeal) Wallis J A clarified the rules of interpretation that apply when different meanings can be ascribed to various words and phrases.

He held that the present state of the law can be expressed as follows:… “interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of a document as whole and the circumstances attendant upon its coming into existence.  

Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusiness like results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business like for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document” (my underlining). The Judge went on to state that from the outset of the exercise in determining the meaning, one has to consider the context and the language together, with neither predominating over the other.

So, let us apply the principles of this case to get to the legal meaning of the relevant wording.

The national disaster in regard to the current regulations is the Covid-19 pandemic, a life-threatening disease which is highly contagious.

The general purpose of the regulations is essentially to manage, control and limit and slow the spread of the Covid-19 disease amongst the public so that there is not a spike in infections that would overwhelm medical resources and hospitals. The general idea is to delay the spread by curtailing gatherings amongst the public. To achieve this, gatherings of people as defined in the regulations have been prohibited everywhere (in both public and private spaces) and movement of people from their places of residence have been restricted (save for specific exceptions which are referred to in the regulations).

It is quite clear from the context of the regulations that it is not expected that life just has to stop. Essential services, as defined, have to continue and people are entitled to receive these services and leave their homes to purchase the necessities of life like food, medical expenses, health care products and the like in order to carry on living.

The principle objective behind the regulations therefore is toward preventing gatherings of people where the virus is likely to spread more easily (including a person’s residence or place of residence). Nowhere in the context of the regulations is there any prohibition pertaining to what can be done in a person’s place of residence other than a prohibited gathering. This is not the case when it comes to places and properties that are not places of residence, for example shops and offices normally open to the public which have been closed by the regulations (those being not essential businesses where business activities take place).

In the circumstances, providing the activities in a residence mentioned do not constitute a gathering they are obviously not prohibited by the regulations.

So, what is the legal meaning of “residence” or “place of residence” i.e. is it a mere dwelling (building) or is a broader intended?

Having established the purpose behind the regulations as outlined above, the court must obviously have regard to Section 27(3) as to whether the meaning ascribed to the words would render the regulation necessary for dealing with the destructive effects of the disaster (see section 27(3)(e) of the DMA).

I respectfully do not believe that it can be rationally argued that prohibiting a solitary activity of jogging, walking, collecting post, watering a garden in a private residence is necessary to deal with the destructive effects of the disaster as it does not entail any form of gathering which is likely to spread the virus.  

This is no doubt why “residence” or “place of residence” was not specifically defined in the lockdown regulations.

The logical, sensible and business-like interpretation is that the residence or place of residence comprises the private property that makes up such residence .i.e. the land and buildings and common property within the boundaries of a suburban house, block of flats or  gated community.

This broader interpretation is certainly not deleterious to the general purpose behind the regulations and prohibitions within the boundaries of such properties on activities that do not constitute gatherings as defined, would lead to unbusiness-like and non sensical meanings.

Accordingly, it is my opinion that the broader meaning is the appropriate legal meaning and as such, activities on common property in the confines of a private gated residential estate, such as jogging, walking, cycling, are not prohibited as long as they do not form part of a gathering as defined.

Overzealous residents, trustees and managing agents who are not law makers or judges, should remember that what is not specifically prohibited in the lockdown regulations is allowed, particularly if the activities do not offend the rationale behind the regulations and they should not look for prohibitions that are not there in the regulations which are generally allowed in the management rules, constitutions of such private residential estates. As the saying in Afrikaans goes: “Moenie die bobbejaan agter die berg gaan haal nie”.

Should anyone wish to discuss any aspect of this opinion with me, please feel free to contact me on 083 459 3407 or at john@listerco.co.za.

This opinion is not intended to be relied upon as legal advice. Please consult us directly before making any decisions.

________________

John Lister

LISTER & COMPANY

 

In terms of the Government Gazette Vol:657 Dated 26 March 2020 No 43164 - Information regarding COVID19 can be found at HERE