Ex Parte: van Heerden (1079/2020) [2020] ZAMPMBHC 5 (27 March 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION (MAIN SEAT)

Case Number: 1079/2020

In the Ex Parte Application of:

KAREL WILLEM VAN HEERDEN Applicant

JUDGMENT

Roelofse AJ:

[1] Coronavirus disease [1] (“COVID-19”) has taken a terrible grip of the World - it is described as an invisible enemy. COVID-19 typically spreads during close contact and via respiratory droplets produced when people cough or sneeze. The media keeps live count the numbers of those who have perished.

On 27 March 2020, the global tally of persons who were known to be infected with COVID-19 was 558 317. Of those known to be infected, 25 347 have perished as a result of COVID-19.[2] States have restricted its citizens’ movements in a despite effort to stop the spread of the virus because it is spread through

human contact.

[2] The drive to curb the COVID-19 menace, its global health and economic effects is unprecedented.

[3] South Africa is not spared. South Africa’s confirmed cases presently stands at 1160. Two people have died in South Africa as a result of the virus. Here, the death toll is expected to rise dramatically as elsewhere in the world.

[4] On 15 March 2020, the Minister of Cooperative Governance and Traditional Affairs (“the Minister”), designated under Section 3 of the Disaster Management Act, 2002 (Act No. 57 of 2002) (“the Act”) and in terms of sub-section 27(2) of the Act[3] declared a national state of disaster.[4] On 17 March 2020, the Minister, after consulting the relevant Cabinet members, made Regulations regarding the steps necessary to prevent an escalation of the disaster or to alleviate, contain and minimise the effects of the disaster (the COVID-19 Regulations).[5]

[5] Sub-section 27(2)(f) of the Act expressly provides for the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area.

[6] On 25 March 2020, the Minister, after consultation with the Minister of Health, published an amendment to the COVID-19 Regulations (“the final lock down Regulations”). The final lock down Regulations provides for the restriction of movement of persons [6] during the period the final lock down Regulations is in force and effect, namely from Thursday 23:59 on 26 March 2020 to Thursday 23:59 on 16 April 2020.[7] Thus, at the time this application was brought to my attention on Friday, 27 March 2020 at 16:02, the final lock down Regulations were in full force and effect.

[7] In terms of Regulation 11B(1)(a) of the final lock down Regulations, 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 ground, or seeking emergency, lifesaving or chronic medical attention.[8] Every gathering, is prohibited except for funerals as provided for in sub-regulation (8).[9] The movement of persons between provinces[10] and between metropolitan and district areas is prohibited.[11]

[8] Regulation 11G 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.

[9] The circumstances of this application are extremely upsetting. It shows in the crudest manner the crude effects of the final lock

down Regulations upon a family.

[10] 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.

[11] The applicant says that he approached this court on an urgent basis because he does not want to contravene the final lockdown

Regulation. The applicant approaches this 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.

[12] In his affidavit, the applicant alleges that there would be no risk of him contaminating anyone with the virus during his trip to Hofmeyr and he sets out the reasons for him saying so. The applicant also alleges 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. The applicant says that he 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.

[13] 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.”[12]

[14] 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….”[13]

[15] 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.”

[16] 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.

[17] In the premises, the application is dismissed.

___________________

Roelofse AJ

Acting Judge of the High Court

DATE OF JUDGMENT: 27 March 2020

THERE WAS NO APPEARANCE IN COURT BY VIRTUE OF THE DECLARATION OF THE STATE OF DISASTER.

[1] Coronavirus disease 2019 (COVID-19) is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).[6] The disease was first identified in 2019 in Wuhan, the capital of Hubei, China, and has since spread globally, resulting in the 2019–2020 coronavirus pandemic - https://en.wikipedia.org/wiki/Coronavirus_disease_2019

[2] https://www.youtube.com/watch?v=qgylp3Td1Bw

[3] Section 27 of the Act provides as follows: Declaration of national state of disaster.—(1) In the event of a national disaster, the Minister may, by notice in the Gazette, declare a national state of disaster if— (a) existing legislation and contingency arrangements do not adequately provide for the national executive to deal effectively with the disaster; or (b) other special circumstances warrant the declaration of a national state of disaster. (2) If a national state of disaster has been declared in terms of subsection (1), the Minister may, subject to subsection (3), and after consulting the responsible Cabinet member, make regulations or issue directions or authorise the issue of directions concerning— (a) the release of any available resources of the national government, including stores, equipment, vehicles and facilities; (b) the release of personnel of a national organ of state for the rendering of emergency services; (c) the implementation of all or any of the provisions of a national disaster management plan that are applicable in the circumstances; (d) the evacuation to temporary shelters of all or part of the population from the disaster-stricken or threatened area if such

action is necessary for the preservation of life; (e) the regulation of traffic to, from or within the disaster-stricken or threatened area; ( f ) the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area; (g) the control and occupancy of premises in the disaster-stricken or threatened area; (h) the provision, control or use of temporary emergency accommodation; (i) the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area; ( j) the maintenance or installation of temporary lines of communication to, from or within the disaster area; (k) the dissemination of information required for dealing with the disaster; (l) emergency procurement procedures; (m) the facilitation of response and post-disaster recovery and rehabilitation; (n) other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster; or (o) steps to facilitate international assistance. (3) The powers referred to in subsection (2) may be exercised only to the extent that this is necessary for the purpose of— (a) assisting and protecting the public; (b) providing relief to the public; (c) protecting property; (d) preventing or combating disruption; or (e) dealing with the destructive and other effects of the disaster. (4) Regulations made in terms of subsection (2) may include regulations prescribing penalties for any contravention of the regulations. (5) A national state of disaster that has been declared in terms of subsection (1)— (a) lapses three months after it has been declared; (b) may be terminated by the Minister by notice in the Gazette before it lapses in terms of paragraph (a); and (c) may be extended by the Minister by notice in the Gazette for one month at a time before it lapses in terms of paragraph (a) or the existing extension is due to expire.

[3] Section 27 of the Act provides as follows:

Declaration of national state of disaster.—(1) In the event of a national disaster, the Minister may, by notice in the Gazette, declare a national state of disaster if—

(a) existing legislation and contingency arrangements do not adequately provide for the national executive to deal effectively with the disaster; or

(b) other special circumstances warrant the declaration of a national state of disaster.

(2) If a national state of disaster has been declared in terms of subsection (1), the Minister may, subject to subsection (3), and after consulting the responsible Cabinet member, make regulations or issue directions or authorise the issue of directions concerning—

(a) the release of any available resources of the national government, including stores, equipment, vehicles and facilities;

(b) the release of personnel of a national organ of state for the rendering of emergency services;

(c) the implementation of all or any of the provisions of a national disaster management plan that are applicable in the circumstances;

(d) the evacuation to temporary shelters of all or part of the population from the disaster-stricken or threatened area if such

action is necessary for the preservation of life;

(e) the regulation of traffic to, from or within the disaster-stricken or threatened area;

( f ) the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area;

(g) the control and occupancy of premises in the disaster-stricken or threatened area;

(h) the provision, control or use of temporary emergency accommodation;

(i) the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area;

( j) the maintenance or installation of temporary lines of communication to, from or within the disaster area;

(k) the dissemination of information required for dealing with the disaster;

(l) emergency procurement procedures;

(m) the facilitation of response and post-disaster recovery and rehabilitation;

(n) other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster; or

(o) steps to facilitate international assistance.

(3) The powers referred to in subsection (2) may be exercised only to the extent that this is necessary for the purpose of—

(a) assisting and protecting the public;

(b) providing relief to the public;

(c) protecting property;

(d) preventing or combating disruption; or

(e) dealing with the destructive and other effects of the disaster.

(4) Regulations made in terms of subsection (2) may include regulations prescribing penalties for any contravention of the regulations.

(5) A national state of disaster that has been declared in terms of subsection (1)—

(a) lapses three months after it has been declared;

(b) may be terminated by the Minister by notice in the Gazette before it lapses in terms of paragraph (a); and

(c) may be extended by the Minister by notice in the Gazette for one month at a time before it lapses in terms of paragraph (a) or the existing extension is due to expire.

[4] GN 313 of 15 March 2020: Declaration of a National State of Disaster, published in Government Gazette No. 43096.

[5] GN 318 of 18 March 2020: Regulations issued in terms of section 27 (2) of the Act, Government Gazette No. 43107.

[6] Regulation 11B.

[7] The definition of “lock down” under Regulation 11A.

[8] Regulation 11B(1)(a)(i).

[9] Sub-regulation (8) limits the attendance of funerals to 50 people, no night vigil shall be held and all safety measures must be strictly adhered to.

[10] Regulation 11B(1)(a)(ii).

[11] Regulation 11B(1)(a)(iii).

[12] Paragraph 3.4 of the founding affidavit.

[13] Paragraph 3.7 of the founding affidavit.