Court dismisses application for man to attend family funeral to curb the spread of COVID-19

May 1st, 2020
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Ex parte Van Heerden (MN) (unreported case no 1079/2020, 27-3-2020) (Roelofse AJ)

The applicant approached the Mpumalanga Division of the High Court in Nelspruit seeking permission to travel for a family funeral. The applicant residing in Mbombela, Mpumalanga received a telephone call from his mother on the morning of 27 March 2020, wherein she informed him that his grandfather had tragically passed away in a fire at his home earlier that morning.

The applicant’s grandfather lived in Hofmeyr, which is situated in the Eastern Cape. The applicant desperately wanted to travel to Hofmeyr in order to support his mother and assist with his grandfather’s funeral, which would be held in April. In terms of the provisions of reg 11B(1)(a)(ii) of the final lockdown regulations, the applicant was prohibited from travelling from Mpumalanga to the Eastern Cape.

The applicant approached the Mpumalanga High Court on an urgent basis because he did not want to contravene the final lockdown regulations. The applicant approached the court for an order that he be –

  • temporarily exempted from the travelling restrictions contemplated in reg 11(B)(1)(a)(ii);
  • allowed to leave Mbombela on 28 March for Hofmeyr;
  • allowed to remain in Hofmeyr until 6 April; and
  • allowed to leave Hofmeyr for Mbombela on 7 April.

In his affidavit, the applicant alleged that there would be no risk of him contaminating anyone with COVID-19 (the virus) during his trip to Hofmeyr and set out the reasons for him saying so. The applicant said that he intended to comply with the remaining provision of the regulations and that he would apply all the necessary precautions to prevent contamination and/or the spread of the virus.

The applicant argued in his founding affidavit that funerals are allowed in terms of the final lockdown regulations and that he ‘accepts that the regulations were drawn in an urgent manner and that the authors were not afforded ample opportunity to consider all aspects which could relate thereto, including without limitation that persons’ family members do not [necessarily] reside in one province and that, in attending a funeral of a family member, a person may be obliged to move between provinces and/or municipalities’.

The applicant also alleged that he had not been in contact with any person from abroad or a person who had contracted the virus and that he did not display any of the known symptoms of the virus. The applicant added that he intended to comply with all the remaining provisions of the regulations and that he would apply all the necessary precautions to prevent contamination and/or spread of the virus.

On 15 March, the Minister of Cooperative Governance and Traditional Affairs (the minister), designated under s 3 of the Disaster Management Act 57 of 2002 (the Act) and in terms of subs 27(2) of the Act declared a national state of disaster (see GN313 GG43096/15-3-2020).

On 17 March, the minister, after consulting the relevant Cabinet members, made regulations regarding the steps necessary to prevent an escalation of the disaster to alleviate, contain and minimise the effects of the disaster (the COVID-19 Regulations (see GN318 GG43107/18-3-2020)).

Sub-section 27(2)(f) of the Act expressly provides for the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area.

On 25 March, the minister, after consultation with the Minister of Health, published an amendment to the COVID-19 Regulations (the final lockdown regulation). The final lockdown regulations provide for restriction of movement of persons during the period the final lockdown regulations are in force and effect, namely from 23:59 on Thursday, 26 March to 23:59 on Thursday, 16 April. Thus, at the time this application was brought to the court’s attention on Friday, 27 March at 16:02, the final lockdown regulations were in full force and effect.

In terms of reg 11B(1)(a) of the final lockdown regulations, the movement of persons and goods are restricted. Every person is confined to their place of residence, unless strictly for the purpose of performing an essential service, obtaining essential goods or service, collecting a social grant, or seeking emergency, lifesaving or chronic medical attention. Every gathering is prohibited, except for funerals as provided for in sub-reg 8. The movement of persons between provinces and between metropolitan and district areas is prohibited.

Regulation 11G provides that any person who contravenes the restriction of movements of persons and goods shall be guilty of a criminal offence and, on conviction, be liable to a fine or imprisonment for a period not exceeding six months or both such fine or imprisonment. The court said the circumstances of the application were extremely upsetting. The court held that it shows in the crudest manner the crude effects of the final lockdown regulations on a family.

The court held that the Constitution is the supreme law of the country, and s 165 of the Constitution vests the court with authority and the bounds within which that authority must be exercised. Section 165(2) provides as follows:

‘The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.’

The court said that it sympathised with the applicant. However, it pointed out that the law must be upheld. The court added that presently, the law prohibits that which the applicant wants to do, however, urgent and deserving. That, the executive, under enabling legislation, invoked the provisions of the Act by declaring the state of disaster in order to curb the spread of virus.

The court noted that the Act and the final lockdown regulation applies to everyone within the borders of the country. Roelofse AJ held: ‘I cannot accede to the relief the applicant seeks because in doing so, I will be authorising the applicant to break the law under judicial decree – that no court can do. In addition, no matter how careful and diligent the application will conduct himself, not only the applicant but many others may be exposed to unnecessary risk, even death if I grant the applicant the relief he seeks’. The court dismissed the application.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.