Legal Interpretation for Tourism Experiences during Level 4

Please see the legal opinion below from WC Legal Services regarding tourism experiences during Alert Level 4 adjusted lockdown regulations:

We have considered the applicable Regulations and note that the Regulations gazetted on Sunday, 27 June 2021 (GNR 480 of 29 April 2020 as amended by GNR 610 of 11 July 2021), prohibit all gatherings, with the exception of:

(a)     funerals;

(b)     workplaces; or

(c)     the buying or obtaining of goods and services.

The following gatherings are specifically excluded:

• social gatherings, including  faith-based  gatherings
• political  events  and  traditional  council meetings 
• cinemas and theatres
• casinos
• museums, galleries,  archives and libraries 
• conferencing, exhibitions and entertainment facilities.

A gathering is defined as any assembly, concourse or procession in or on—

(a)       any public road, as defined in the National Road Traffic Act, 1996 (Act No. 93 of 1996); or

(b)       any other building, place or premises, including wholly or partly in the open air, and including, but not limited to, any premises or place used for any sporting, entertainment, funeral, recreational, religious, or cultural purposes; but excludes a workplace and a place of residence for those persons ordinarily residing at the residence

Given the definition above, some tourism experiences could be interpretated as gatherings depending on the nature of the experience (i.e. tourism experiences with a recreational element). Notwithstanding this, the Regulations do permit economic activity and provide, for those business that may operate, that:

(7)        Every business premises, including, but not limited to, a supermarket, shop, grocery store, retail store, wholesale produce market or pharmacy shall-

(a)       determine their area of floor space in square metres;

(b)       based on the information contemplated in paragraph (a), determine the number of customers and employees that may be inside the premises in order to comply with the limitation as provided for in regulation 21(2) of the Regulations and subject to strict adherence to all health protocols and social distancing measures;

(c)       take  steps  to  ensure  that   persons  queuing  inside  or  outside   the premises are able to maintain a distance of one and a half metres from each other;

(d)       provide  hand  sanitisers  for use  by  the public and employees  at  the entrance to the premises; and

(e)       assign, in writing, an employee  or any other  suitable person, as  the compliance employee, who must ensure-

(i)         compliance with the measures  provided for in paragraphs (a)  to (d); and

(ii)         that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19 are adhered to.

It is therefore possible that some tourism experiences fit into the businesses envisioned above. Therefore, while there is no specific exclusion of tourism experiences in the Regulations, and while no Tourism Directions have been gazetted, tourism operators who opt to provide tourism experiences must do so in line with what the Regulations permit but are cautioned to ensure that their business activities do not fall within the ambit of what is expressly prohibited and/or what is contained in the definition of a gathering.

Kind regards,

Morongoe Khomo

State Law Advisor

Legal Services (Governance and Economic Cluster)

Department of the Premier

Western Cape Government

Tel: 021-483 9980

Fax: 021-483 3729

Email: Morongoe.Khomo@westerncape.gov.za

Website: www.westerncape.gov.za