Question posted in the General Law category relating to Gauteng
Lockdown Level 3
The question I have is on the interpretation of the Lockdown Regulations Level 3 at:
“Disaster Management Act: Regulations: Alert level 3 during Coronavirus COVID-19 lockdown”, detailed at https://www.gov.za/covid-19/about/alert-level-3-during-coronavirus-covid-19-lockdown and any other related Level 3 Regulations that might not be explicitly include in this reference.
The Johannesburg Hiking Club is a club not for profit, and is not a business, but we have paying members to cover the costs of operating the club.
Prior to Covid and the Lockdown Regulations the club arranged regular hikes at various venues, typically at:
1. Privately owned venues in the nearby countryside open to the public with paid access for the day.
2. Property in the nearby countryside owned by us, not open to the public.
3. Privately owned hiking trails in South Africa, typically offering overnight accommodation in simple structures.
The current Regulations are not specific on whether clubs such as ours are allowed to arrange hikes for its members at such places or not, as far as we can tell.
At Level 5, 4 and 3 of the Lockdown the Club cancelled all organised hikes, but resumed organised hikes for its members again at Level 2. Typically during hiking people adhere to the social distancing and mask wearing protocols.
It is clear from the Regulations that Social Gatherings are prohibited.
The question is, after framing the situation above:
Is organised hiking under the current Regulations regarded as a Social Gathering or not?, and if not, is there anything else in the Regulations that prohibits the club from carrying out and arranging organised hikes at the above types of venues?
Social Gathering is not the primary intention of our hike activities, just the enjoyment of the outdoors and for exercise, while respecting social distancing, mask wearing and sanitisation.
If our activities are regarded as Social Gatherings then clearly the Regulations prohibit our organised hikes outright.
In answering the question please ignore the specific locations of the venues. We know and understand where we are allowed to travel to, and where not.
Information Requested by Lawyer
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Answer to the Question
Well, I think that you've hit the nail on the head with your question. Essentially, you want to know whether these organised hiking events are social gatherings [and therefore prohibited to Regulation 36(3)] or not, and by implication allowed.
I think that it is beyond doubt that a group of people (2 or more) constitutes a gathering and as such they are required to wear a face mask, adhere to all health protocols, maintain a distance of at least one and a half metres from each other, and adhere to any other health protocols and social distancing measures as provided for in directions issued by the relevant Cabinet member after consultation with the Cabinet member responsible for health.
I think that an organised hike is definitely a gathering of people, but I'm not convinced that it is a social gathering.
There is no legislation which I could find which helps us understand what a social gathering is.
There is an interview by Cathy Powell, Constitutional Law lecturer at UCT, where she discusses this. Unfortunately, her answer is that we don't know what a social gathering is.
I think that it is important to look at the reason (purpose) of your gathering. If the reason for the hike is to gather and socialise, then you are over the line. However if the reason for the hike is simply to exercise and enjoy nature and the outdoors, then I think that you wouldn't be socially gathering.
BUT, this has not yet been tested in court.
I think if, during your hike, you separate the group out a little, and try to avoid the initial social aspect (standing around the parking bay chatting) and also the finish (having a beer at the boot of your car), and focus only on the exercise component, I think that you should be safe.
Remember, you are allowed to exercise. You can do this by, for example, walking in the mountain.
Finally, just remember the curfew and realise that you can't hike overnight.