Update: Children are NOT allowed to move between parents during the lockdown

Just before South Africa descended into lockdown – and under growing pressure from the legal fraternity and ordinary citizens alike – Justice Minister Ronald Lamola announced several interventions that were at first interpreted as a relaxation of the laws around the movement of children between parents.

Social Development Minister Lindiwe Zulu in a briefing on Saturday afternoon, however, made it clear that the lockdown would not be relaxed for parents or their children and they could not move between homes.

Lamola had confirmed a moratorium on evictions for the remainder of the lockdown and appeared to make an allowance that children whose parents did not live together could be moved between their parents during the three-week stay-at-home.

This was in new directions gazetted literally at the 11th hour “to combat the spread of Covid-19 in all courts, court precincts and justice service points”.

“Arrangements, where a child is required to move from one parent to another, must be attended [paragraph 8..2],” the minister said, which was interpreted as a relaxation of lockdown laws – but incorrectly so.

Beverley Clark, the chairperson of the Gauteng Family Law Forum, the largest representative group of specialist family lawyers in the country, has explained that Lamola’s directions did not change the terms of the national lockdown regulations.

Paragraph 8.2 related only to the kinds of urgent issues which courts may hear during the lockdown.

She conceded that paragraph 8.2 had caused a lot of confusion, but the high court on Friday confirmed that there was to be no movement of children between homes during the lockdown.

The Pan African Bar Association wrote to Lamola on Friday to ask him to correct the ambiguity in 8.2 of his regulations (among other things).

“It seems to me that 8.2 was almost definitely intended to be 8.1(d) and to relate to the kinds of matters courts will hear (in urgent circumstances),” wrote Clark in an email to clients.

The default, she said, the over-arching principle was that the country is in a state of national lockdown. In terms of Regulation 11B(1)(a)(i) of the COGTA regulations issued by Dr Dlamini-Zuma on 25 March 2020 under the Disaster Management Act:

“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.”

She made it clear that the justice minister in any case had no power to issue directives overriding the general lockdown measures, and these directions needed to be read to mean that he was only dealing with measures to prevent the spread of the virus in the courts.

“In other words, whatever 8.2 means, it cannot lawfully authorise parents to break the curfew and move children from one home to another in terms of a parenting plan/court order/agreement. That would fall outside the minister’s power to issue directions relating to courts and court precincts, and it is highly unlikely that he intended to act ultra vires his powers when issuing these directions. The tenor of the directions is clearly aimed at state and related services and facilities. So, the only way to read it with some sense is that if state services are required to facilitate an arrangement under a parenting plan (which one could read to include a court order or settlement agreement), that would be an essential service and could be carried out.”

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Stats SA’s latest figures suggested that around 25,000 couples with minor children were divorcing each year and government hotlines along with legal practitioners have been inundated with calls for panicked parents in recent days. At least one application for parental access over the Covid-19 lockdown was this week struck from the roll of a Gauteng court for not being urgent enough.

The minister has also announced that maintenance matters and domestic violence protection, as well as protection from harassment, will be dealt with by the courts during this period.

In addition, he has placed a moratorium on evictions for the duration of the Covid-19 lockdown. This, once again, under pressure from civil society groups such as the University of the Witwatersrand’s Centre for Applied Legal studies (CALS).

A number of different social justice groups wrote the government calling for evictions to be stayed over this time, with CALS saying in a statement on Monday that it could not be “business as usual” when the country was faced with “a potential public health crisis which only stands to be exacerbated when scores of families are displaced or rendered homeless”.

“Evictions that result in displacement or homelessness can significantly increase the spread of infectious diseases like Covid-19,” the centre said at the time.

The new directions said that all evictions and all attachment orders would be suspended with immediate effect.

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