Published Date: November 30, 2021

Covid-19 cases are on the rise, once again, in South Africa, in line with what scientists had predicated mid-year. The fourth wave of infections is on the cards and, therefore, it is critical that every necessary effort is made to, at least, delay this wave, or at best, avoid it. The rise in infections coincides with the discovery of a new Omicron variant – of which not much is known about, at this stage. The spike in Covid-19 numbers and new variant have, justifiably so, sparked fears of severe restrictions being imposed, particularly with the festive season “on the doorsteps”. During his speech on Sunday, 28 November 2021, the President pleaded with everyone to be vigilant and specifically requested that year-end functions and rage festivals be postponed or cancelled. Also, the Department of Education in Gauteng has voiced its concerns about the schools’ rage festivals/matric dances as we approach the last week of matric examinations. These concerns are justifiable having regard to the events of yesteryear wherein we saw super spreader events right into mid-December, culminating to the Second Wave which caused havoc. Shortly after those events of last year, the attendees of the events tested positive for COVID-19 – e.g. the Ballito Rage Festival was one such ‘super spreader’ event where many attendees were reported to have tested positive. On 1 February 2021, it was reported that 2 attendees knew they had COVID-19 and, subsequently, 848 people at the event tested positive. It then becomes relevant to look at whether there may be any legal recourse for the victims against the organisers.

From the onset, it is critical to highlight that there is no ‘blanket approach’ to the cases and, each matter is decided upon its unique facts. Equally important, consolidation of court cases stemming from the same super spreader event is possible. Victims of COVID-19 who contracted the virus at these events may have delictual claims against the responsible organisers and/or relevant stakeholders. The success of each case is bound upon its unique facts. The victim will have to prove, on the balance of preponderance, that the wrongful and negligent conduct of the organisers caused him or her harm – health-wise and/or monetary wise. All the above-mentioned elements have well established legal principles and tests applicable in proving them. One of the major stumbling blocks in potential legal action relating to COVID-19 has been the inability to trace how the person contracted the virus given the nature of the virus – this makes it almost impossible to prove the factual causal link. In cases of super spreader events, however, the situation may be slightly favourable to the victims, and the victims may be able to prove the said link with less difficulty. In this regard, the victim may use circumstantial evidence and prove the link on the balance of preponderance. The circumstantial evidence in this instance would consider all the relevant facts and factors such as – the cautionary steps employed by the organisers and whether they were in line with the COVID-19 Regulations and Protocols; floor markings – whether they allowed the required social distance; the number of people who attended – were the numbers within the legally permitted threshold; compliance officers – for the events where there were alcoholic beverages served, it would be negligent not to have compliance officers given the behavioural influence of alcohol; whether temperature was checked at the entrance; and whether necessary enquiries were made to find out if the attendees were positive or had close contact with the infected person, etc. Furthermore, with the contact tracing showing the number of attendees who got infected, this can be part of the circumstantial evidence i.e. the more attendees testing positive, the easier it becomes for the victims to prove the link. These are some of the factors for consideration and the facts of the case will dictate whether there is a need for additional factors. Lastly, in some cases it may not be justifiable to legally hold organisers solely responsible and, therefore, the victim may need to ‘shoulder’ some blame and, thus, the blameworthiness will be apportioned, accordingly.

Whilst the conduct of the organisers may attract criminal proceedings, in line with the COVID-19 Regulations, and thus be required to pay fines or face imprisonment, the victims may be able to claim for damages from them. The possible heads of damages claimable include – past and future medical expenses; general damages; past and/or future loss of earnings or earning capacity. The applicable head of damages in each case will be informed by the merits of the matter. There may also be claims for loss of support where appropriate.

In view of the foregoing, the hosts of events need to be extremely wary of their actions; the manner in which they go about in hosting these events, as the legal ramifications may be quite devastating.