EASING OF COVID-19 RESTRICTIONS IN BOTSWANA: WHAT YOU NEED TO KNOW TO PREPARE YOUR BUSINESS FOR RE-OPENING

Botswana registered 3 cases of COVID-19 on 30 March 2020, resulting in the President of the Republic of Botswana (“the President”) declaring a state of public emergency (“SOPE”) and national lockdown with effect from 2 April 2020 (“the Lockdown”). The positive cases increased during the month of April.  As at 10 May 2020, 9,540 tests have been carried out, with 23  positive cases (1 death, 12 recoveries and 10 active cases).

It is for this reason that the President presented a statement on the Government’s update on the response to the Covid- 19 Pandemic (“the Statement”) on 27 April 2020. The purpose of the Statement was, among others, to inform the nation of the measures by the Government of Botswana (“the Government”) to ease the Covid-19 restrictions in a phased manner.

Regulations were subsequently passed on 4 May 2020 to deal with the phased easing of restrictions. These were affirmed by Parliament on 6 May 2020, with some amendments (“the Regulations”). However (and as is to be expected in these circumstances), there are several areas of concern and ambiguity in the regulations. This has been compounded by the press briefings and statements made on social media, which appear contradictory in certain respects and not supported by the regulations in certain instances. What follows below is therefore a summary of our understanding of (1) the regulations and (2) the intention of the Government to re-open the economy.

EXTENSION OF THE LOCKDOWN

The Lockdown has been extended to 20 May 2020 at midnight. The extension is being implemented in the three phases as follows:

  • Phase 1: 30 April to 7 May 2020;
  • Phase 2: 8 May to 20 May 2020; and
  • Phase 3: 20 May 2020 until the end of the SOPE.

THE PHASES

The Regulations provide further detail on how businesses are to operate going forward. Businesses should always be aware that the Regulations are subject to change, which may be sudden depending on the circumstances. In the event the Director advises the President that the threat of Covid-19 has increased, the President may re-instate the lockdown rules. We therefore advise that even as businesses open, arrangements should be made to increase the capacity of the business to work from home or render services remotely. This would minimise the negative impact on the business should lockdown rules be reinstated.

PHASE 1: 30 April to 7 May 2020

This period did not have any easing of previous restrictions, it was an extension of the Lockdown on the same terms and conditions as previously communicated.

PHASE 2:  8 May 2020 until 20 May 2020

During this phase and for the remainder of the SOPE, a trade, business or school may operate where it has satisfied the Director, or any person authorised by the Director of its ability to prevent the spread of Covid-19. There are several requirements a business is to meet in order to obtain authorisation. Some of these requirements are sector specific and businesses are advised to approach their relevant Ministries for guidance. The general requirements include the following:

  • obtain the body temperature of all persons accessing the business premises. Where a person’s temperature is 37.4˚ and above, such person shall not be allowed to access the premises and shall be referred to the Director. Businesses should therefore keep a record of their testing data;
  • disinfect business premises regularly (2-3 times a day);
  • maintain a register of all employees, visitors, customers and others who come into the business premises, indicating the date and time each person accesses the premises. We are of the view that in order to be fit for the purpose for it is being introduced, this register should contain contact details and residential addresses. To avoid privacy and data protection concerns (although the Data Protection Act is not yet in force), businesses should ensure the register is in the custody of officers whose position and responsibility demands it to be, and no information obtained should be utilised for any other purpose outside of the Regulations;
  • observe social distancing of 1-2 metres apart;
  • provide sanitizers, soap, water and/or other means of washing hands;
  • ensure every person who accesses the business premises is wearing a face mask or other cloth to cover their nose and mouth;
  • deny entry to any person who refuses to abide by the above guidelines; and
  • immediately close premises once a direction is received from the Director that a person who had access to the premises has either tested positive for Covid-19 or has come into contact with a person who has tested positive.

This regulation excludes business issued with a licence under the Liquor Act and those in the sale and importation of tobacco, which shall remain closed until further notice.

The Regulations provide that the opening of trades or business during this period will be carried out in a phased manner as directed by the Director in consultation with the Ministry responsible for licencing the trades or businesses concerned. To this end, various ministries are issuing directives and/or regulations for businesses under their mandate, and as follows (the following is a rapidly changing list, and does not include essential service providers as these have been operating):

  • the Ministry of Transport has issued regulations lifting road transport restrictions and allowing taxis, combis, call cabs, staff buses and own account transport services to operate within a 60 km radius. The transport services are to adhere to certain conditions and should certify their readiness to abide by the Covid-19 protocols, which include sanitizing vehicles 2-3 times a day, maintaining a register of passengers and enforcing the regulation on wearing of face- masks, amongst others;
  • the Ministry of Trade has issued a list of businesses which may operate between 8 and 14 May 2014. These are baby shops, general clothing, car wash, drillers, laundromats/dry clean, dry clean depot, industrial hardware, haberdashery, phone shop, cosmetics, commercial hardware, workshop, motor dealer for spares and maintenance, general hire service, optician shops, plant hire services, informal sector businesses, furniture shops and florists. We anticipate that this list is going to be gradually increased over the next few days;
  • the Ministry of Defence and Security has authorised the Courts to resume operations, subject to the directive from the Chief Justice (‘the CJ”);
  • in the Ministry of Finance, all financial institutions are to resume operating, with certain officers continuing to work from home. All revenue services have been resumed;
  • in the Ministry of Presidential Affairs, Governance and Public Administration, 25% of public officers are to resume duty with accounting officers given the mandate to determine those who should return to the office and those to continue working from home;
  • In the Education sector, it has been stated that teaching and support staff in primary, secondary, tertiary, brigades and technical colleges are to return to duty with effect from 11 May 2020;
  • in the Ministry of Foreign Affairs and Cooperation, foreign missions shall resume operations at 25% of staff compliment;
  • in the Ministry of Environment and Tourism: applications for new entrants will be processed online; domestic guest lodges are to open; conducting of environment impact assessments resumes; travel services for bookings and tour operations within zones is permitted;
  • in the Mining and Energy Sector: 50% of employees in prospecting businesses; 30% of Debswana employees; 50% employees in diamond cutting and polishing, sort houses and dealers; 50% employees in quarries, semi-precious stone holders and small mines. Certain specific entities are listed to resume operations: Botswana Oil, Okavango Diamond Company, Minerals Development Company Botswana, Botswana Geoscience Institute; and
  • in the Ministry of Land Management, the following services shall resume: survey for registration of titles, survey diagram submissions/examination/approvals, property valuations, conveyancing, deeds registration and lease management.

The Government has also issued advisory to the effect that during 8-14 May, only 25% of the work force is to return to work. Thereafter (15-21 May 2020), businesses shall operate at 50% capacity.

The relevant Ministries are to guide their respective sectors on the process to follow in order to return to work incrementally.

In terms of permits, all employers are to obtain permits for their employees online at www.gov.bw. Although not adequately provided for by the regulations, the Government has advised that businesses are to utilise the essential services permits for this part. There is an additional permit called the ‘pink permit’, which has been introduced for the sole purpose of allowing people to travel between villages, towns and cities. The rationale of this permit is to allow employees to return to their workstations. Employers are to apply for the pink permits by submitting applications to their respective ministries.

Please note that a new development on 11 May 2020 has resulted in all pink permits suspended for the Gaborone region for a period of 2 days. No travel out of and into Gaborone is permitted.

PHASE 3: 21 May 2020 until the end of SOPE

During this period, all business will be allowed to operate at 100% capacity (although specific regulations in respect of alcohol and tobacco sales will have to be issued). The business shall continue to implement the Covid-19 protocols detailed under Phase 2 above, including maintenance of a register, disinfecting, enforcing facemasks, observing social distancing and providing sanitizers or hand washing mechanisms.

In addition, the country has been divided into 9 Covid Zones. During this phase, all movement within a Covid-Zone is permitted. However, no person shall undertake non-essential travel between Covid-Zones until further notice.

 GENERAL 

  1. Operations of the Court

The CJ released a practice directive on 8 May 2020 (“the Directive”). In terms thereof, the courts shall operate on a regular basis with effect from 8 May 2020, subject to certain conditions. The most material parts of the Directive are as follows:

  • all judgements and rulings which were outstanding prior to the lockdown shall be delivered no later that 29 May 2020, save in exceptional circumstances;
  • judgements may be delivered via ICT platforms, it being noted that judgments of national importance may be televised at the direction of the CJ;
  • judicial case management conferences shall be dealt with in a manner to be determined by the Judicial officer in terms of the Rules of Court. The Judicial officer may communicate electronically with the Attorneys/parties and issue such directions as may be necessary to ensure trial readiness of any matters;
  • all court sittings shall be subject to social distancing protocols;
  • submissions shall generally be through electronic filing of heads of argument, and oral submissions may be done through ICT platforms;
  • parties shall file all pleadings electronically, save in exceptional circumstances;
  • suspension of the dies requirement during the lockdown remains in force until further notice. Notwithstanding this, interdicts and stays of execution (among others) remain unaffected by the lockdown.
  1. Travel

Travel into Botswana remains restricted unless the person is a citizen or a resident. All persons entering the Republic are to be subjected to a 14-day quarantine, and the Director may determine that the individual pay for the costs associated with the quarantine.

  1. Wage Subsidy

The Government has published the list of all businesses which have benefitted from the wage subsidy during the month of April at www.finance.gov.bw. All businesses which have benefited from the fund but have failed to pay employees are in contravention of the guidelines of the Covid fund and have been advised to effect such payment without further delay.

CONCLUSION

The resumption of business operations as a result of easing of restrictions in Botswana is to be implemented with caution. Businesses remain obligated to ensure the health and safety of their employees and should ensure that all actions take into account the Covid-19 protocols.

This guide has been prepared to provide general information to assist businesses prepare for re-opening of their operations in an efficient manner. Clients are advised to obtain specific advice for their sectors as appropriate.

This article is of a general nature and for information purposes only. It does not and is not intended to constitute legal advice. Businesses should therefore obtain legal advice as appropriate.