The cruel and crude effect of lockdown on a family: inter-provincial travel to a funeral

On Friday, 27 March 2020 at 4:02pm, 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 cruellest manner the crude effects of the lockdown regulations on a family.

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 travelling 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 who 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 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.

Nicci Whitear-Nel is a senior lecturer in the fields of evidence and labour law at UKZN's School of Law. Her research interests are in evidence, labour law, legal ethics and legal education.