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Sunday, 21 November 2021 20:51

Covid-19 Daily Update: SA records 687 new cases bringing total cases to 2,929,862.

By Lehlohonolo Lehana.

The National Institute for Communicable Diseases (NICD), reports 687 new COVID-19 cases that have been identified in South Africa, which brings the total number of laboratory-confirmed cases to 2,929,862. This increase represents a 3.4% positivity rate.

The majority of new cases today are from Gauteng (79%), followed by North West and KwaZulu-Natal each accounting for 5% respectively. Mpumalanga and Western Cape each accounted for 3% respectively; Northern Cape accounted for 2%; and Eastern Cape, Free State and Limpopo each accounted for 1% respectively of today’s new cases. 

NICD said a further 2 COVID-19 related deaths have been reported, bringing total fatalities to 89,574 to date.

Meanwhile Discovery, Sanlam and other businesses in South Africa have announced plans to mandate Covid-19 vaccination for employees.

If businesses are doing it, can the trustees or directors of your community housing scheme do it? Can residents or their visitors be compelled to produce proof of vaccination before entering the complex or making use of common facilities like the swimming pool, gym or clubhouse?

According to specialist community schemes attorney and BBM Law director, Marina Constas, the answer is most likely no.

"If organisations and some restaurants are saying that staff and patrons must produce proof of vaccination in order to work in the office or dine in the establishment, it may seem reasonable, sensible and even necessary for bodies corporate and homeowners association members to expect the same from the residents and visitors to community housing schemes like sectional title complexes, apartment blocks, residential estates and retirement villages," she said.

"However, I believe they would be overreaching and unlikely to succeed in implementing a vaccine mandate."

Constas said that common property is owned by all members of the body corporate – all owners in the complex. Every owner has an undivided share of the complex’s common property and cannot be prevented from using it, she said.

"Right now, no definitive decision has been made by the High Court in South Africa regarding vaccine mandates. While companies are exercising their right to mandate vaccines for their staff, the fact of the matter is that we do not yet have specific laws or Court decisions on mandatory vaccines in relation to the fight against Covid-19.

Without a relevant law such as a public health order or a valid by-law, there would be no legal basis for sectional title trustees or homeowners association directors to mandate vaccination among residents in their community scheme or for visitors.”

Constas said that they may consider adding this to the complex rules but that can be challenged on the basis that rules must be reasonable and not discriminatory.

"If health issues or religious beliefs are valid reasons not to have the Covid vaccine, then it is possible that a blanket mandatory vaccination rule could be construed as discriminatory in some cases."

There are also issues around the protection of personal information to be considered, she said.

Constas said that trustees seeking to implement vaccine mandates may consider the Sectional Titles Schemes Management Act’s stipulation that every sectional title body corporate must act in the best interests of the body corporate and for the benefit of the owners of units in the scheme.

Section 7 of the Act delegates this responsibility to trustees, who may argue that a vaccine mandate is in everyone’s best interests and benefits the owners of units. Since the Act does not specify what these ‘best interests’ are, it could be open to interpretation, she said.

This is a very complex issue. The trustees and directors of community housing schemes have a vital role to play in ending this pandemic and must ensure that they comply with regulations and meet their obligations, Constas said.

*There may be discrepancies in the numbers of cases and recoveries reported for the Western Cape, as the Western Cape reporting currently includes re-infections and additional cases identified by antigen tests, which are not incorporated into the national line list for reporting. As a result, the number of recoveries for the Western Cape has been kept static on the national reports. We are working with Western Cape health authorities to align the reporting and resolve these discrepancies.