Is COVID-19 a death at a funeral?

In the Ex Parte application of Van Heerden (Ex parte Van Heerden (MN) unreported case no. 1079/2020, 27 -3-2020), the applicant sought relief from the Acting Judge Roelofse, in the Mpumalanga Division of the High Court in Nelspruit, seeking permission to travel from Mbombela, Mpumalanga to Hofmeyr, in the Eastern Cape for the purpose of attending a family funeral.

The applicant`s grandfather had tragically passed away in the Eastern Cape on 27 March 2020, whereby the applicant wanted to assist his relatives in support of the funeral which would be held in April 2020.

The issue facing the applicant was that he would have to travel cross provincial border and more specifically in prohibition of the provisions imposed by Regulation 11B(1)(a)(ii) of the “Final Lockdown Regulations” for purposes of containing the COVID-19 Pandemic, therefore the applicant was prohibited from travelling from Mpumalanga to the Eastern Cape.

The applicant sought relief from the High Court on an urgent basis, as he desperately wanted to attend the funeral, but was not of the intention to contravene the abovementioned regulations, therefore possibly facing arrest and / or prosecution. Therefore, the applicant requested the Court an order in the following terms:

1. Temporary exemption from travelling restrictions contemplated in Regulation 11B(1)(a)(ii);
2. Allowed to leave Mmombela on 28 March 2020 for Hofmeyr, where after he would remain in Hofmeyr until 6 April 2020, thereafter be allowed to return to Mbombela on 7 April 2020.

The applicant argued that he would pose no risk of contaminating anyone with COVID- 19 during his travels, whereby, except for the exception of travelling, he would comply with all the remaining provisions imposed by the said regulations, as well as take the necessary precautions to prevent contamination and / or the spread of COVID -19.

The applicant furthermore argued the following, that funerals are allowed in terms of the said regulations, but that consideration was not afforded to, but not limited to, the fact that all family members of a deceased do not necessarily reside in the same province as the deceased and / or the province in which the funeral is to be held. The last-mentioned argument was based on the short time frame in which the Minister of Cooperative Governance and Traditional Affairs, declared the National State of Disaster, on 15 March 2020, whereby the full and final lockdown was affected on 27 March 2020.

Therefore, the full circumference and conciseness, of a National Lockdown, restricting the movement of persons and goods (confining every person to their place of residence, unless strictly for the purposes of performing essential services, obtaining essential goods and / or services, collection social grants or seeking emergency, lifesaving or chronic medical attention) was decided in a timeframe of 12 days.

Furthermore, Regulation 11G provides that any person whom contravenes the abovementioned restrictions, would be guilty of a criminal offence and, on conviction, be liable to a fine or imprisonment for a period not exceeding six months and / or both.

In light of the abovementioned, the Court held, that the circumstances of the applicant were extremely upsetting, whereby the application showed the crudest manner the effects of the “Final Lockdown Regulations”” on a family. Furthermore, the Court held that it and other courts, held the Constitution as the Supreme Law of the country, whereby Section 165 vests the court with authority and bounds to act within the ambit of the Constitution, as Section 165(2) provide the courts with an independency, which is only subject to the Constitution and law, which they must apply impartially and without fear favour or prejudice.

Although the Court sympathised with the applicant, it pointed out that the law must be upheld in terms of Section 165(2) of the Constitution, whereby the law prohibits that which the applicant intends to do, regardless the urgency and deserving nature of the intended act.

In essence, the Court held that the legislation enabling the executive, invoked the provisions of the Act by declaring the state of disaster in order to prevent and curb the spread of the COVID-19 virus.  The Court held that it could not accede to the relief the applicant sought because in doing so, it would be condoning the applicant to break the law under judicial decree, whereby no court can do. In conclusion the Court held that, in addition, no matter how careful and / or precautionary the applicant would conduct himself, he would still expose himself and other to unnecessary risk, even death if the application would ne granted. Therefore, the application was dismissed.