The regulations issued pursuant to the Disaster Management Act, 2002 (the “Regulations”) restricted the operation of a number of industries in an effort to curb the spread of the COVID-19 virus within South Africa. The Regulations issued in respect of Alert Level 4 brought with them much uncertainty as to whether construction could continue on the renewable energy projects currently being developed pursuant to Renewable Energy Independent Power Producers Procurement Programme (“REIPPP”). In particular, the Regulations, which outlined the easing of the lockdown restrictions to Alert Level 4, vaguely allowed for the resumption of “civil engineering services for public works projects (including water, energy and sanitation)” along with “public works civil engineering and construction works” (see Part D of Table 1 of the Regulations issued on 29 April 2020).
This has now been clarified with the publication of the latest directions issued under the Regulations which are intended to provide guidance on the implementation of the Regulations. In terms of the Government Notice No. 542 published on 15 May 2020 by the Minister of Mineral Resources and Energy, certain civil engineering activities for public works have now been permitted to recommence during the lockdown period, but only insofar as such civil engineering activities relate to energy. The Minister has clarified civil engineering for public works activities that are allowed to resume specifically includes, amongst others, projects procured under REIPP that are currently in construction. In addition, the following services are also expressly permitted:
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all professional entities that provide licences, approvals and authorisations for the maintenance and construction of energy projects;
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all professional planning, costing and design work that supports construction work on sites, in anticipation of incremental work on construction sites;
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contracted suppliers, contractors and consultants who need to travel across borders to attend to projects; and
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energy construction work for already priced and awarded government tenders.
Therefore, the construction on the REIPPP projects currently being developed that had been halted due to the Regulations, and the uncertainty surrounding these, may now resume.
Fasken