Covid-19: Attending a funeral during the Lockdown

Author: Keshia Manolios

Service: Litigation & Dispute Resolution

This article summarises the amendments to the regulations regarding travel restrictions during Lockdown, and explains what is required of a person wanting to attend a funeral in a different metropolitan district or province.

COVID-19; a word on the lips of everyone around the world at the moment. While we are all facing the same enemy globally, the way in which each country is combating this common enemy differs. South Africa was the first country to implement strict regulations, including a national lockdown, at a very early stage of the epidemic before a single death had occurred. These regulations have resulted in a monumental change in the daily lives of each South African and perhaps on the face of it, we all accepted that such strict measures were necessary for our own protection, but what happens when the impact of these regulations are truly felt at home?

What happens when a loved one passes away during the lockdown and you reside in another metropolitan or district area or province?

These were the unfortunate circumstances that Mr Karel Willem van Heerden found himself in just one day into the national lockdown.

On the morning of 27 March 2020, Mr van Heerden received a call from his mother informing him that his grandfather had passed away earlier that morning due to an unfortunate fire incident that occurred at his home. Mr van Heerden lives in Mbombela in Mpumalanga while his grandfather lived in Hofmeyr, Eastern Cape which is where the funeral was to take place.

In terms of the regulations that were made by the South African Minister of Cooperative Governance and Traditional Affairs (“the Minister”) in response to the declaration of COVID-19 as a national state of disaster, Mr van Heerden was allowed to attend a funeral (provided the attendees did not exceed 50 people) however he was prohibited from travelling between provinces which meant that he would not be able to attend his grandfather’s funeral.

On the assumption that the regulations were drawn up in an atmosphere of urgency and therefore the authors perhaps had not had sufficient time to consider all aspects which could relate thereto, Mr van Heerden launched an urgent application in the High Court of South Africa, Mpumalanga Division (“Court”) in terms of which he sought to be temporarily exempted from the travel restrictions if he undertook to apply all the necessary precautions to prevent contamination and/or the spread of the virus.

While the Court sympathised with Mr van Heerden, the urgent application was dismissed. At the time, if the Court had granted the relief sought by Mr van Heerden, the Court would have been authorizing Mr van Heerden to break the law under judicial decree and potentially expose not only Mr van Heerden but others to unnecessary risk and even death. Accordingly, the Court could not grant the application. This judgment was handed down by Acting Judge Roelofse AJ on 27 March 2020.

Amendments to the regulation

On 2 April 2020, in a move that was no doubt inspired by Mr van Heerden’s case, the Minister amended the regulation dealing with the attendance at funerals during the lockdown. In terms of the amended regulation, a person is permitted to travel between towns, cities and provinces for purposes of attending a funeral or a cremation only if:

  1. The person attending the funeral is a spouse or a partner, child (biological, adopted or stepchild), child-in-law, parent (biological, adopted or stepparent), sibling (biological, adopted or stepbrother or sister) or grandparent of the deceased or the person is closely affiliated to the deceased. “closely affiliated” has been defined in the regulations as someone with parental responsibilities and rights in respect of the deceased or who had a significant relationship based on caregiving, psychological or emotional attachment to the deceased;

  2. The attendees at the funeral do not exceed 50 people;

  3. The person intending to travel to the funeral has obtained a permit from the nearest magistrate’s office or police station; and

  4. The travel restrictions placed on commuter transport services and private vehicles by the regulations are adhered to.

Applying for the required permit

When applying for the required permit, the applicant must produce the original or a certified copy of the deceased’s death certificate. If the death certificate is not available, then the applicant must make a sworn affidavit which affidavit must correspond substantially with the form provided for in the regulations.

If successful, the permit will entitle the applicant to attend the funeral provided that the applicant does not:

  1. remain in the metropolitan or district area, or province for more than 48 hours; and

  2. stay at the place of residence of a relative or friend but must instead stay at a hotel, lodge or guest house for the duration of the 48 hours provided that the permit is presented to the owner or manager of the hotel, lodge or guest house.

A failure by any person to comply with the regulations shall result in such person being guilty of a criminal offence and, if convicted, liable to a fine or imprisonment for a maximum of 6 months or subject to both a fine and imprisonment.