BY Pareen Rogers AND Hlengiwe Mahlangu
South Africa: inevitable litigation on the rise as a result of the Disaster Management Act Regulations
In response to the Coronavirus (COVID-19) pandemic, the South African Government has implemented various statutory measures to prevent the potential spread of the disease, and to limit, contain and minimise the risk of exposure of persons within the country. These include the declaration of the COVID-19 pandemic as a national state of disaster on 15 March 2020 and the subsequent implementation of the national lockdown from midnight on Thursday, 26 March 2020 until midnight on 16 April 2020.
In order to support and give effect to these measures (and particularly the lockdown), the government has issued a range of legislative interventions, the most important of these being the Regulations issued in terms of section 27 (2) of the Disaster Management Act, 2002. The Regulations stipulate a number of strict restrictions, particularly those related to freedom of movement of persons and goods, during the period of the lockdown. The restrictive measures in the Regulations and their consequent effect will inevitably lead to various legal challenges.
A perfect example can be seen in the recent case of Ex Parte Karel Willem Van Heerden, where Mr Van Heerden, residing in Mbombela in Mpumalanga, received a call on the morning of 27 March 2020 informing him that his grandfather who lived in Hofmeyr in the Eastern Cape had tragically passed away in a fire at his home. Regulation 11B (1) (a), contains a restriction of movement of persons and goods, which provides that for the period of the lockdown:
- every person is confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life-saving, or chronic medical attention;
- every gathering, as defined in regulation 1 is hereby prohibited, except for funeral as provided for in sub regulation (8);
- movement between provinces is prohibited; and
- movement between the metropolitan and district areas, is prohibited.
In the circumstances, Mr Van Heerden lodged an urgent application to the Mpumalanga High Court for an order that he be:
- temporarily exempted from the traveling restrictions contemplated in Regulation 11B (1) (a)
- allowed to leave Mbombela on 28 March 2020 for Hofmeyr;
- allowed to remain in Hofmeyr until 6 April 2020; and
- that he be allowed to leave Hofmeyr for Mbombela on 7 April 2020.
In his application, Mr Van Heerden submitted the following reasons as to why he would not be placing anyone at risk in contracting the virus during his journey to the Eastern Cape:
- he has not been in contact with any person from abroad or a person who has contracted the virus;
- he does not display any of the known symptoms of the virus;
- he intends to comply with all the remaining provisions of the Regulations;
- while the Regulations address the issue of attendance at funerals, they do not cater for the fact that family members may live in different provinces and thus prevent the movement of family members to attend a funeral in a different province; and
- he will apply all the necessary precautions to prevent contamination and/or the spread of the virus.
Mr Van Heerden’s application was dismissed by Acting Justice Roelofse. In coming to this decision, Acting Justice Roelofse applied the following reasoning, namely: he is required uphold the law; that the law as it currently stands prohibits what Mr Van Heerden wants to do, however urgent and deserving it may be; and, that the Disaster Management Act was invoked the provisions of the Act by declaring the state of disaster in order to curb the spread of COVID-19. Acting Justice Roelofse further reasoned that the Act and the final lock down Regulation applies to everyone within the borders of the Republic. Therefore, he cannot accede to the relief that Mr Van Heerden seeks because in doing so, the court would be authorising Mr Van Heerden to break the law promulgated under judicial decree – an act no court can legitimately authorise and/or condone.
Acting Justice Roelofse also added that, no matter how carefully and diligently Mr Van Heerden may have conduct himself in his journey, not only Mr Van Heerden but many others may have been exposed to unnecessary risk, even death, if the relief sought by Mr Van Heerden’s were to be granted.
It appears that the acting Judge weighed up the personal interests of Mr Van Heerden against the purpose and nature of the Regulations and what they aim to achieve and found that the latter outweighs any personal interest of Mr Van Heerden, albeit that this analysis is not readily apparent from judgment itself.
This decision highlighted an anomaly in the version of the regulations considered by Acting Justice Roelofse. Funerals, subject to certain conditions were permitted, but travel to get to the funeral was not permitted. This has now been rectified in regulations published today, 2 April 2020. Travel to funerals is now permitted subject to certain strict conditions. Some of these are:
- The categories of the persons who may travel to attend are limited. They are: a spouse or partner of the deceased; a child of the deceased, whether biological, adopted or stepchild, child-in-law of the deceased; a parent of the deceased whether biological, adopted or stepparent; a sibling, whether biological, adopted or stepbrother or sister of the deceased; a grandparent of the deceased; and, person closely affiliated to the deceased.
- each person whether travelling to the funeral a must obtain a permit in the prescribed form from his or her nearest magistrate's office or police station to travel to the funeral or cremation and back.
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COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.
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