Extended Lockdown period - ICT as essential service

• South Africa

• Technology, Media and Telecoms

23-04-2020

On Thursday, 9 April 2020, President Cyril Ramaphosa announced the extension of the nationwide lockdown for an additional 2 weeks, until 30 April 2020.

The Companies and Intellectual Property Commission (CIPC) advised that all companies providing essential services will be required to obtain revised CIPC certificates to enable them to operate during the extended lockdown period. It is important to remember that the CIPC certificate does not in itself constitute the right to continue operating during the extended lockdown period, and it is the responsibility of the company to ensure that it complies with the regulations.

Although amendments to the regulations have broadened the scope of essential services, the movement of people is still restricted, and everyone is still required to strictly comply with the regulations.

The inclusion of Information and Communication Technology (ICT) as a separate essential service, which is welcomed, has created some confusion, and the incorrect belief that it is now business as usual for the ICT sector.

It is clear from the regulations that, while ICT services have been included as essential services, they are still limited to the provision of:

(i) hardware, components and supplies for projects related to essential services - item A.7 of Annexure B;

(ii) supply of components, and critical maintenance and repair in relation to the rendering of essential services - item B.24 of Annexure B;

(iii) telecommunications infrastructure and services - item B.13 of Annexure B;

(iv) critical maintenance services that cannot be delayed for more than 21 days - item B.33 of Annexure B; and/or

(v) ICT services to entities and institutions engaged in delivering essential services - item B.36 of Annexure B.

South Africa is dependent on everyone following the processes, as directed by Government, and remaining compliant with the regulations and directions given by Government in respect of the lockdown and the provision of essential services.

The provision of ICT services must therefore still be undertaken in line with the regulations and directions issued by the Government, and any breach thereof remains is a criminal offence that could (if found guilty) result in jail time and/or a fine, for the offending employee, and the director or officer in whose name the CIPC certificate was issued.

The above does not constitute legal advice, but rather advice of general application which may change depending on the facts and circumstances of a particular case. Independent legal advice should be obtained before implementing any measure which may impact upon rights and obligations.