Courts, lawyers pulled into virus-linked actions
As we begin the fourth day of 21-day lockdown, news of legal challenges, as well as positive responses from some sections of the law community, is beginning to filter through the myriad reports on the effects of the shutdown on individuals and businesses across the country.
And astonishingly, given that the pangolin is thought to be the source of the virus ravaging the world, a High Court hearing has revealed a loophole in Zimbabwe law that fails to ban trade in the species.
One of several reports on how the courts and lawyers have been pulled into the Covid-19 saga – so far two people have died in SA – features a Constitutional Court challenge by an obscure NGO.
According to a Sunday Times report, it has taken President Cyril Ramaphosa to the apex court, arguing that his declaration of a 21-day lockdown was ill-informed because it claims Covid-19 is not harmful to Africans – a claim refuted by health experts – and is asking the court to declare the move unconstitutional.
The Hola Bon Renaissance Foundation also wants the court to declare Covid-19 ‘poses no serious threat to the country and its people’.
‘HBR Foundation believes that Covid-19 cannot be harmful to Africans,’ says the NGO, chaired by Bontshitswe Mothopeng, who has been posting videos online calling on South Africans to support his case.
His argument appears to be based on a number of questionable news sources, notes the Sunday Times – including articles published on apparently fake news websites under headlines such as ‘Chinese Doctors reveal why African skin resists coronavirus’.
The HBR Foundation describes itself as a non-profit organisation with no political affiliation championing community transformation and promoting ‘central economic opportunity’. It wants the court to order government to remove any funds dedicated to fighting Covid-19 and reprioritise them for essential services delivery.
In another case, a Cape Town court has allowed a US couple to leave SA with their newly-adopted son on one of the last pre-lockdown flights, ruling against the Department of Home Affairs.
Kelly and Laura McCollough, who arrived in SA in February to finalise the adoption of nine-year-old Ricardo, had faced being stuck in SA, not only because of the lockdown but also because Home Affairs had not processed Ricardo's name-change application nor issued the new birth certificate he needed to apply for a South African passport, notes the Sunday Times report.
Previously, adopted children left on their South African passports in their birth names, with their adoption orders and a formal sign-off from both countries. But last year Home Affairs stipulated that passports could only be issued once name changes had been registered and new birth certificates issued, which can take months, if not years.
The McColloughs, in an application heard by Western Cape High Court acting Judge Fred Sievers, said Ricardo had integrated well into their family and the adoption was finalised in court on 20 February.
In March, the US issued an urgent travel advisory that citizens must return home – and then the lockdown was announced.
‘There was no question of leaving Ricardo behind,’ said Kelly. Lawyers for Home Affairs opposed the urgent application, saying it was not urgent, that the Minister had not had sufficient time to consider the case and that a special travel document issued by the US was not a recognised travel document.
But Sievers ordered that Ricardo be allowed to leave in light of the worldwide Covid-19 crisis.
Also in Cape Town, the head of a body corporate has been slapped with a demand for R20 000 compensation after kicking out an Italian Airbnb tenant because he feared he might have Covid-19, according to the Sunday Times.
Apartment owner Martine du Preez has also told Alan Shearer, body corporate chair at the upmarket New Cumberland block in Mouille Point, that she will take him to the Equality Court and the Human Rights Commission if he does not apologise.
The body corporate's lawyer, Matthew Ashworth, wrote to Du Preez's attorney, saying no damages would be paid. ‘The body corporate has a duty to ensure that all residents at New Cumberland enjoy a safe living environment,’ he said.
The first judgment arising from the lockdown regulations occurred at the Mpumalanga High Court, which rejected an application from someone who wanted to travel across provinces for a funeral.
In handing down judgment, notes a Mail & Guardian report, the court said: ‘The circumstances of this case are extremely upsetting. It shows in the crudest manner the crude effects of the final lockdown regulations upon a family.’
Karel van Heerden, from Mbombela in Mpumalanga, went to court urgently on Friday afternoon after he received a phone call from his mother that his grandfather, who lived in Hofmeyr in the Eastern Cape, had passed away in a fire at his home.
‘The applicant desperately wants to travel to Hofmeyr in order to support his mother and to assist with his grandfather’s funeral,’ said acting Judge Johannes Hendrikse Roelofse in a judgment. Van Heerden went to court because he did not want to contravene the regulations, said the judge.
But, even though he said in his affidavit that he had no Covid-19 symptoms or any contact with anyone from abroad, the judge refused, saying the law prohibited travel between provinces.
‘I have extreme sympathy for the applicant but I must uphold the law,’ said the judge. I cannot accede to the relief the applicant seeks because in doing so, I will be authorising the applicant to break the law under judicial decree – that no court can do,’ Roelofse ruled.
‘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.’
© Juta and Company (Pty) Ltd 2016
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