Clarity sought on confusing regulations

Industry is seeking clarity on a number of confusing new regulations.

Following the recent address by President Cyril Ramaphosa, a number of new Government Gazettes have been published by various ministries outlining amendments to the Disaster Management Act legislations during the COVID-19 lockdown.

While the regulation amendments published by Dr Nkosazana Dlamini-Zuma related mainly to the additional restrictions implemented in Nelson Mandela Bay as a hotspot, the Ministry of Health and the Ministry of Transport gazettes included a number of amendments to the existing travel regulations on December 3, which have cast new doubts. Is a negative PCR test now required both to enter and leave South Africa?

Otto de Vries, CEO of outbound industry association, Asata, told Tourism Update that he was aware of the confusion in the industry. He said the Tourism Business Council of South Africa (TBCSA), together with the airline associations, had been working through the gazetted documents and had corresponded with the relevant government departments in an attempt to eradicate the confusion resulting from the wording of the legislation and to ensure that it was consistently and correctly interpreted.

Tourism Update has summed up the latest travel regulations gazetted by the various departments on December 3, below:

*Amendment of Regulations issued by Dr Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs, December 3, 2020.

This gazette includes the following wording, and makes no differentiation between incoming and outgoing travellers.

1. Travelling to and from the Republic is allowed, subject to subregulation 3 (see below)
2. All international travel will resume subject to:

1. The traveller providing a valid certificate of a negative test which was obtained not more than 72 hours before the date of travel; and
2. In the event of the traveller’s failure to submit a certificate as proof of a negative test, the traveller will be required to quarantine him or herself at his or her own costs.

The full gazette can be found here: https://www.gov.za/sites/default/files/gcis_document/202012/43964gon1290.pdf

*Amendment of Regulations issued by Fikile Mbalula, Minister of Transport, December 3, 2020.

According to the Ministry of Transport, international flights to and from the Republic are permitted, subject to the following conditions. This gazette also makes no distinction between inbound and outbound travellers, as can be seen in this excerpt below:

1. A traveller must provide a valid negative Polymerase Chain Reaction (PCR) test certificate, obtained not more than 72 hours before the date of travel from an accredited laboratory and in line with World Health Organization requirements or equivalent local accreditation authority. South African authorities reserve the right to verify the authenticity of the presented PCR or COVID-19 test certificates;

This gazette also puts the onus on the airline to ensure that travellers have PCR negative certificates, again failing to state whether this applies to only inbound, or both inbound and outbound passengers, with this regulation (k) below:

k)   An operator shall not board any passenger without a valid negative PCR or a valid COVID-19 negative test certificate;

However, towards the end of the gazette the Transport Ministry adds the following statement, which has been interpreted as somewhat contradictory:

With regards to international outbound flights:

1. Subject to the travel requirements of a country of destination, a passenger must provide the Operator with a valid negative PCR test certificate or a valid COVID-19 negative test certificate from an accredited laboratory certified by the South African Health Products Regulatory Authority and South African National Accreditation System.
2. An operator is responsible for ensuring that passengers comply with COVID-19 requirements of the country of destination.

The full Ministry of Transport gazette can be found here: https://www.gov.za/sites/default/files/gcis_document/202012/43956gon1279.pdf.

*Amendment of Regulations issued by Dr Zwelini Lawrence Mkhize, Minister of Health – December 3, 2020.

Meanwhile the Ministry of Health gazette states the following, clearly differentiating between outgoing and incoming passengers:

16. Persons exiting the Republic

1. A person exiting the Republic through a point of entry must be subjected to screening,  including the completion of a traveller health questionnaire.
2. A person who, during screening, is found to have had exposure to COVID-19 or is presenting with any signs and symptoms of COVID-19 must be subjected to a medical examination which may include testing.
3. Based on the outcome of the medical examination referred to in subparagraph 2, the Director-General: Health or any delegated person may make a decision on whether or not the person is allowed to exit the Republic.
4. Persons found to have contracted COVID-19 pursuant to testing in terms of subparagraph 2 must be placed under mandatory isolation or hospitalisation.
5. Persons placed under isolation as provided for in subparagraph 4 may be permitted to self-isolate at their own private residence if they comply with the criteria set out in paragraph 19.

17. Person entering the Republic

1. A person entering the Republic must be subjected to screening on arrival at the point of entry, including the completion of a traveller health questionnaire.
2. A person who, during screening, is found to have had exposure to COVID-19 or is presenting with any signs and symptoms of COVID-19, must be subjected to a medical examination which may include testing and isolation.
3. A person entering the Republic must on arrival at the point of entry, provide to the port health official the following:

1. A completed Traveller Health Questionnaire
2. A valid negative COVID-19 Polymerase Chain Reaction test result, not older than 72 hours from the date of departure from the country of origin.

1. A person who is not in possession of a valid negative COVID-19 Polymerase Chain Reaction test result will be subjected to antigen testing at the point of entry and may be subjected to quarantine at an approved facility at his or her own cost.
2. A person referred to in subparagraph 4 and who is subjected to quarantine (a) must, on arrival at the point of entry, complete and sign a written declaration committing to adhere to quarantine requirements; (b) will be liable for all costs related to testing quarantine and transportation. (The gazette later clarifies this point stating “a traveller entering the Republic or his or her employer must bear the cost of the quarantine and isolation”.)

The Health Ministry gazette goes on to say that certain persons are exempt from the PCR certificate requirement, including ‘frequent travellers’.

The gazette says that ‘frequent travellers’ must complete a traveller health questionnaire and have a valid negative COVID-19 PCR test result but adds that the initial test result presented on entry for subsequent travel remains valid for 14 days. The gazette defines a ‘frequent traveller’ as follows:

“‘Frequent traveller’ means a person who travels through the borders of the Republic on more than one occasion within a fourteen-day period excluding airline crew and cross-border freight operators.”

The full gazette can be found here: https://www.gov.za/sites/default/files/gcis_document/202012/43954gon1278.pdf

This definition of ‘frequent traveller’ is somewhat controversial, and is expected to become a developing story.