A man whose grandfather was burnt to death in a fire on Friday has been refused permission to travel from his home in Mpumalanga to attend the funeral in the Eastern Cape. The man, Karel van Heerden, brought an urgent application in the high court’s Mpumalanga division on Friday afternoon, seeking a special exemption from the coronavirus lockdown regulations now in force that bar crossing provincial boundaries. The three-week lockdown has been imposed to help slow the spread of the virus.
As judicial decisions internationally increasingly reference the new coronavirus, the case of Karel van Heerden will go down as one of the first in the world to ask for exemption from lockdown regulations.
Van Heerden, who lives in Mbombela, Mpumalanga Province, presented the high court with a tragic story: His grandfather had died in a fire at his home that morning. Van Heerden was desperate to get to his mother to support her and help with funeral arrangements.
But the mother and grandfather lived in another province and, under regulations promulgated last week to control SA’s current three-week lockdown, crossing of provincial borders is prohibited.
This prompted Van Heerden to ask the court for help. Yesterday afternoon he brought an urgent application – without notification to other parties that might have an interest in the matter – petitioning the court for what amounted to a favour: that the regulations should be relaxed in his case so that he could get back to his mother and help her in this crisis.
The judge hearing the matter gave a brief background to the coronavirus disease, its international impact and the efforts being made in SA to curb its spread. The judge also pointed out that in SA ‘the death toll is expected to rise dramatically as elsewhere in the world.’
The 2002 Disaster Management Act allowed for the declaration of a national state of disaster, and that regulations were now in place, made in terms of that Act, said the court.
Among others, the regulations tightly control attendance at funerals, with the numbers limited to 50 people. They also bar movement between provinces and between ‘metropolitan and district areas’.
Contravention of these restrictions amounts to a criminal offence, attracting a fine and/or imprisonment.
Commenting on Van Heerden’s case, the judge said the circumstances ‘are extremely upsetting’.
‘It shows in the crudest manner the crude effects of the final lock down Regulations upon a family.’
The judge said Van Heerden had approached the court on as a matter of urgency because he did not want to contravene the regulations. He had asked for a temporary exemption from the restrictions on inter-provincial travel so that he could drive to Hofmeyr and stay there for 10 days before returning home.
According to the judge, Van Heerden said there would be ‘no risk’ that he would contaminate anyone with the virus during his trip to Hofmeyr, and gave reasons for saying so.
These included that he had not been in contact with anyone from abroad or anyone who had contracted the virus. He also said that he did not display any of the ‘known symptoms’ of the virus. Van Heerden further ‘intends to comply with all the remaining provisions of the regulations and that he will apply all the necessary precautions to prevent contamination and/or the spread of the virus,’ the judge noted.
From the judgment it appears that the application by Van Heerden did not challenge the validity of the regulations themselves. Rather, he suggested that because they were drawn up in such a hurry, they did not provide for circumstances such as those in which he now found himself. The regulations created a situation that was ‘unfair’ to him in the ‘unique circumstances’ of the case, where those involved in the funeral of a family member did not necessarily all live in the same province.
The court expressed ‘extreme sympathy’ for the situation of Van Heerden, adding, ‘but I must uphold the law.’
‘Unfortunately, presently, the law prohibits that which (Van Heerden) wants to do, however urgent and deserving.’
‘The Executive, under enabling legislation, invoked the provisions of the Act by declaring the state of disaster in order to curb the spread of COVID-19. The Act and the final lock down Regulation applies to everyone within the borders of the Republic. I cannot accede to the relief the applicant seeks because in doing so, I will be authorizing the applicant to break the law under judicial decree – that no court can do. In addition, no matter how careful and diligent the applicant 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 judgment concludes with the following notice: ‘There was no appearance in court by virtue of the declaration of the state of disaster’