Covid-19 and funerals: What is the legal position?
While funerals have been allowed to be held during the 21-day lockdown period in South Africa, they come with strict regulations.
Naledi Motsiri, director at Werksmans Attorneys, noted that one day after the declaration of the lockdown, the Mpumalanga High Court was approached on an urgent basis by Mr Karel Willem van Heerden.
He sought the court’s permission, despite the president’s declaration of the Lockdown and the various travel bans that have been implemented as a result thereof, to travel to the Eastern Cape in order to support his mother at the funeral of his late grandfather.
Although expressly sympathetic to Van Heerden’s ordeal, the court dismissed this application.
The reason why
The prohibition against travelling across provincial borders, among other things, are outlined in the Regulations published by the minister of Cooperative Governance and Traditional Affairs, Werksmans Attorneys said.
The regulations outline the various restrictions which are necessary to prevent the escalation of Covid-19 and/or to alleviate, contain and minimise the effects of Covid-19.
“The Covid-19 regulations, in essence, restrict movement with the exception of, among other things, attending funerals. The main problem in the Applicant’s case was that the funeral which he wished to attend was in another province, and the Covid-19 regulations prohibited travel between provinces.
“The court based its decision to dismiss the applicant’s application on the travel restriction imposed by the Covid-19 regulations, which apply to everyone who is in South Africa during the Lockdown period.
“The court further emphasised its constitutional duty to apply the law impartially, and that, despite the unfortunate circumstances, it could not authorise a person to break the law,” Motsiri said.
Amendments to the Covid-19 regulations
However, on 1 April 2020, after the court had made its decision in the applicant’s case, the Cooperative Governance minister gazetted amendments to the Covid-19 regulations, Werksmans Attorneys said.
Accordingly, the amended Covid-19 regulations now provide that movement between provinces and districts is prohibited except for attendance of funerals as provided for and on conditions set out in sub-regulation (8).
Persons attending funerals are now required to obtain permits authorising them to travel across provinces, and they will be expected to produce such permits to police officials at road blocks.
In order to obtain these permits, persons must have a death certificate or a certified copy thereof.
A permit may be obtained from a magistrate or station commander – or most senior person at the police station, said Motsiri.
Comment
“The restrictions imposed by the Covid-19 regulations have had painful consequences on the applicant, his family and others in similar positions as the applicant,” said Motsiri.
The court, however, treated Covid-19 with the seriousness it deserves and it followed the letter of the law, rightly so. As a result, the Court’s decision may have saved many lives, including the life of the applicant.
“It is, however, worrying that the Covid-19 regulations have already been relaxed by further amendments in just the first week of the lockdown.
“This creates some doubt as to whether the spread of Covid-19 will successfully be curbed speedily, and whether the Covid-19 curve will be flattened by the end of the Lockdown period.
“Further, based on coverage in both mainstream media and social media, it is clear that some South Africans are not treating Covid-19 with the seriousness it deserves,” said Motsiri.
We have seen instances of blatant disregard of the Covid-19 regulations by those insisting on proceeding with social events – such as a bride and groom who were recorded being arrested on their wedding day over the last weekend – selling or purchasing alcohol, and not staying within the confines of their homes, among other things.
“South Africans should take note that non-compliance with the Covid-19 regulations is a crime punishable by a fine and/or imprisonment,” said Motsiri.
Motsiri said that when considering breaking the law by flouting the Covid-19 regulations by, for example, attending an event, going shopping for non-essential items and purchasing or selling alcohol, “spare a thought for the law abiding citizen who was prevented from burying his family member in order to protect his own health and the health of others”.
Read: South Africa relaxes coronavirus lockdown rules for funerals
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