Since the previous notes appeared on this website with regards to access to minor children the Minister made it clear that, despite what the order with regards to the custody of children determines, the children has to stay with the parent that they are with. This means that the children can not be swapped between parents during the 21 days of lock down.
The latest judgement with regards to the effect of the Regulations issued in terms of the Disaster Management Act explains how strict the working of these regulations are to be implemented. An urgent application was heard in the Mpumalanga High Court by Judge Roelofse.
It deals with Regulation 11B of the final lock down Regulations where the movement of persons and goods are restricted. Every person is confined to his or her place of residence, unless strictly for the purposes of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, lifesaving or chronic medical attention. The movement of persons between provinces and between metropolitan and district areas is prohibited.
Furthermore Regulation 11G of the Regulations issued which provides that any person who contravenes the restriction of movement 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.
As the Judge mentions the circumstances of the application is extremely upsetting. It shows in the crudest manner the crude effects of the final lock down Regulations upon a family.
The applicant resides in Mbombela in the Mpumalanga Province. Early in the morning of 27 March 2020, the applicant received a telephone call from his mother. She informed him that his grandfather tragically passed away in a fire at his home earlier that morning. The applicant’s grandfather lived in Hofmeyr. Hofmeyr is situated in the Eastern Cape Province. The applicant desperately wants to travel to Hofmeyr in order to support his mother and to assist with his grandfather’s funeral. The funeral is to take place sometime next week in Hofmeyr. In terms of the provisions of Regulation 11B(1)(a)(ii) of the final lock down Regulations, the applicant is prohibited to travel from Mpumalanga to the Eastern Cape.
The applicant, on an ex parte, basis applied to Court to obtain permission to travel across provincial borders that are strictly prohibited. If he travelled without such permission he would have contravened the final lockdown Regulations which exposes him to a fine or imprisonment of up to six months or both. He approached the Court for an order “that he be: temporarily exempted from the traveling restrictions contemplated in Regulation 11B(1)(a)(ii); allowed to leave Mbombela on 28 March 2020 for Hofmeyr; allowed to remain in Hofmeyer until 6 April 2020 and that he be allowed to leave Hofmeyr for Mbombela on 7 April 2020.”
The applicant set out various reasons on which he based his argument that there would be no risk of him contaminating anyone with the virus during his travels, and further indicated that he has not been in contact with any person from abroad or a person which has contracted the virus and that he does not display any of the known symptoms of the virus and undertook apply all the necessary precautions to prevent contamination and/or the spread of the virus.
The applicant argues in his founding affidavit that funerals are allowed in terms of the final lock-down Regulation 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 necessary 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.” *1
The applicant further alleges that “……the regulations that fails to curtail the issue revolving imposed traveling restrictions when attending a funeral in another province which is unfair in the unique circumstances as the current matter….” *2
The Constitution of the Republic of South Africa, 1996 is the supreme law of our Country. Section 165 of the Constitution vests this court with authority and the bounds within which that authority must be exercised. Section 165(2) of the Constitution 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 judge said “I have extreme sympathy for the applicant but I must uphold the law. Unfortunately, presently, the law prohibits that which the applicant 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.”
It is clear that the Regulations are to be enforced strictly and limiting any movement at all.
If you have any uncertainty in this regard, you are more than welcome to contact our offices on our emergency number.