The Cruel and Crude Effect of Lockdown on Families: Interprovincial Travel
Cruel and crude was how the court described the effect of the lockdown on Karel Van Heerden and his family.
On Friday, 27 March 2020 at 16:02, Karel Van Heerden approached the High Court on an urgent basis for a temporary exemption from certain of the lockdown regulations.
The court said that the circumstances of his application were extremely upsetting, and that it showed in the cruelest manner the crude effects of the lock down regulations upon a family.
Karel Van Heerden lived in Mbombela in the Mpumalanga Province. Early in the morning of 27 March 2020, he received a telephone call from his mother. She told him that his grandfather had tragically passed away in a fire at his home earlier that morning. The applicant’s grandfather lived in Hofmeyr, Eastern Cape. Van Heerden desperately wanted to travel to Hofmeyr in order to support his mother and to assist with his grandfather’s funeral.
Van Heerden approached the court on an urgent basis because he did not want to contravene the lockdown regulations, which prohibited travel between the provinces. He sought an order that he be temporarily exempted from the traveling restrictions and allowed to travel to Hofmeyr for the funeral.
Van Heerden told the court that there would be no risk of him contaminating anyone with the virus during his trip to Hofmeyr. He explained that he had not been in contact with any person from abroad or a person which has contracted the virus and that he did not display any of the known symptoms of the virus. He said 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 the spread of the virus.
Van Heerden argued that the regulations had been drawn up on an urgent basis and that the drafters had not considered every possible scenario, including one such as his where he needed to attend a funeral in another province. He said that the regulations were unfair in this regard.
The High Court expressed extreme sympathy with Van Heerden but said that in terms of the Constitution it was obliged to apply the law. If the court had authorised Van Heerden to travel to Hofmeyr, it would have been authorising Van Heerden to break the law, under judicial decree. No court has the power to do that. In addition, the court held, no matter how careful and diligent Van Heerden was, he would be exposing himself and possibly many others to unnecessary risk, even death. Van Heerden’s application was thus dismissed.
The only time that a court may set aside a law, or set of regulations, is where that law or regulation has been declared unconstitutional by the Constitutional Court. Van Heerden didn’t seek to set aside the regulation as unconstitutional, he sought a temporary exemption from it, which the court could not grant.
The government responded to the obvious injustice in this case by amending the regulations relating to travel to funerals. The new regulations came into effect on 2 and 16 April 2020. Now, certain people are allowed to travel between provinces to attend a funeral, provided they obtain the necessary permit. The permit may be obtained from a Magistrate or a station commander of a police station on production of the death certificate and proof of their relationship to the deceased.
The only people allowed to travel inter provincially to a funeral are:
• spouse or partner of the deceased;
• children of the deceased, whether biological, adopted or stepchildren;
• children-in-law of the deceased;
• parents of the deceased - whether biological, adopted or stepparents;
• siblings, whether biological, adopted or stepbrother or sister of the deceased;
• grandparents of the deceased; and
• persons closely affiliated to the deceased.
The funeral cannot be bigger than 50 people, and the holding of night vigils is still prohibited. All safety measures must be strictly adhered to.
Certain people are also allowed to move between provinces for the purposes of transporting a body for burial purposes.
In terms of the new regulations, Van Heerden would qualify for a permit that would enable him to travel to Hofmeyr. However, he would not have been able to obtain the permit in time for him to have attended his grandfather’s funeral.
Since Van Heerden’s case there have been at least three other cases of people applying for permission to travel inter-provincially in extreme, exceptional circumstances. One at the Pietermaritzburg High Court, where a 76-year-old father who was not coping with caring for his severely disabled son in lockdown conditions was granted permission to take him to a facility in Cape Town which could cater for his extreme condition. Another where a father was given permission to travel across provinces to collect his children from their grandparents home, and one where the parents of an adult child with autoimmune disease were granted permission to travel to her residence to care for her during the lockdown period. In all three of these cases, there was no express provision granting permission for the inter-provincial travel in the regulations. What we can learn from these cases is that even if the regulations do not expressly permit inter-provincial travel in the circumstances of the case, the High Courts will consider applications to allow it, and will grant permission where exceptional circumstances exist and the court is satisfied that it will be safe to undertake the travel. Each case will be decided on its own unique merits.
Ms Nicci Whitear-Nel is a Senior Lecturer in the School of Law at UKZN.