The COVID-19 virus has caused global havoc and resulted in the unprecedented declaration of a national state of disaster in South Africa by the State President in terms of section 27 of the Disaster Management Act, no. 57 of 2002. The Act gives the executive wide-ranging powers to manage and alleviate the consequences of a national disaster. With the number of active cases in South Africa at the time of writing hereof already exceeding 700 people, there can be little doubt that most reasonable-minded people will consider the pandemic a national disaster. Some countries abroad that have seen fewer active cases have in actual fact announced national lockdowns even earlier than the South African government did. With the socio-economic problems besetting South Africa, one can only hope that even the extreme measure of a national lock-down may be sufficient to stem the tide of a rising infection rate, although the efficacy thereof in informal settlements that lack basic infrastructure like water, sanitation and electricity supplies still remains to be seen.
What is however certain, is that the pandemic is likely to result in a profound impact on all spheres of lives and the way we conduct business, religion and even politics. This column will have a look at the impact the measures that the government introduced will have on the engagement of citizens with our courts.
The judiciary is one of the three pillars underpinning our constitutional democracy. An independent and functioning judiciary gives practical effect to the human rights and safeguards enshrined in our Constitution. In terms of the Bill of Rights, every person has a right of free access to the courts. All court proceedings, with a few exceptions, are open to the public.
The initial regulations that were issued by the National Disaster Management task team were aimed at curbing the spread of the virus through social distancing. This resulted in the heads of many courts placing restrictions on the number of people entering court buildings. The Judge President of the Gauteng Division even went so far as to place a wholesale embargo on the issuing of all new court process, except in respect of matters that were already on the roll or urgent matters. Quite naturally this would have had a prejudicial effect on parties whose claims were about to become prescribed and a few days later the Judge President issued another directive stipulating that parties will be allowed to issue legal process where prescription is imminent (in the majority of cases, three years from the date that a debt has become due but more about that in future blogs).
Under the final regulations issued by the Minister of Cooperative Governance and Traditional Affairs on 25 March 2020, “services related to the essential functioning of courts, judicial officers, the Master of the High Court, Sheriffs and legal practitioners required for those services” were declared essential services during the lockdown. Click on the link below to download the full published Government Gazette.
That, however, does not mean it is business as usual at the courts. The exclusion of non-essential persons at courts and court proceedings that was previously imposed by heads of court in respect of criminal proceedings, still remain in place. Only accused persons, their legal practitioners, immediate family or people they have to rely on for support, guardians in the cases of minors, prosecutors, witnesses, investigating officers, court orderlies and presiding officers will be permitted to attend court proceedings. In the case of detained accused persons, they will not be brought to the courts. Instead, their cases will be postponed in absentia or via audio visual links.
Where people have been warned or summoned to appear in court on any date before 16 April 2020, our recommendation is that they still attend at the court and, should they be turned away at the courts, to obtain written confirmation of their attendance from the security personnel and/or court officers. If they should refuse such confirmation, we suggest that you obtain date-stamped video or photographic evidence of your attendance at the court on the scheduled date. As a bare minimum, also attempt to contact the court or investigating officers by telephone or email. Under no circumstances should a person who had been summoned or warned to appear at criminal proceedings, simply stay away from court.
In the case of civil proceedings, a distinction needs to be made between the High Court and Magistrates Courts. On 25 March 2020, the Chief Justice Mogoeng Mogoeng, reportedly announced that courts should stay open in order to hear any challenges to the lockdown rules (thus far only section 55 of the Disaster Management Act dealing with evacuations in the case of a local disaster had been subjected to the scrutiny of the Constitutional Court, whilst the current regulations and court practice directives all still remain unchartered territory). He also added that courts should still hear cases around maintenance and domestic violence, those involving children, bail applications and other urgent matters. The previous limitations that have been placed on court attendances will however remain in place. The majority of the cases singled out by the Chief Justice fall within the jurisdiction of the magistrate’s courts with the result that we can expect a restricted but still a fair amount of activity at those courts.
As far as the Gauteng Divisions of the High Court is concerned, the Judge President of those divisions issued another Practice Directive on 25 March 2020 under delegated authority from the Chief Justice. In short, the Pretoria and Johannesburg High Courts will only hear urgent applications and then only by means of teleconferencing or other electronic means. The papers must also be uploaded on the recently introduced Caselines platform. Only in exceptional cases will a hearing with physical appearance of the parties and their representatives, be permitted. All other matters that have already been enrolled from 27 March to `17 April 2020 are automatically removed without any further formalities and will only be entertained from 28 April 2020. Divorce cases that have been enrolled on 27 March, 3 and 17 April 2020 in the Johannesburg High Court will all be heard now on 24 April 2020. Click on the link below to download the full published Directive.
Our firm is ready to assist all members of the public and colleagues who may need assistance with court appearances during the period of the lockdown. We have the necessary procedures in place to deal with the present exigencies without compromising on quality of service. Should you requires our assistance, feel free to send an email to us on firstname.lastname@example.org, together with your contact details and the nature of the assistance you will require. For urgent bail applications, please contact 082 885 7323 or 082 940 6614.