As with all businesses, legal practitioners have been profoundly affected by the declaration of the COVID-19 National Disaster and the subsequent lockdown period. While we continue to provide advice, consulting and commercial services, the directives issued will have an effect on some litigious matters and the way matters are handled in court.
On 17 and 19 March 2020, Chief Justice Mogoeng Mogoeng issued directives in terms of which various social distancing and safety measures were implemented. Pursuant to these directives, the various Heads of Court issued practice directives specific to their own judicial divisions. Following the announcement of the lockdown and the publishing of the regulations on 25 March 2020 (“the lockdown regulations”) the position has changed. On 26 March 2020, the Minister of Justice Ronald Lamola, after consulting with the Chief Justice, issued directions (available here) in terms of Regulation 10 of the Disaster Management Act regulations published on 18 March 2020.
The directions, which restrict and limit access to courts and judicial functions further, apply throughout the lockdown i.e. from midnight Thursday 26 March 2020 to midnight Thursday 16 April 2020.
The regulations and directions seeking to restrict or limit the rights of persons to approach a court is, however, a constitutionally sensitive issue. The right of access to courts and the rights of arrested, detained and accused persons are enshrined in our Constitution’s Bill of Rights at sections 34 and 35. These rights may only be limited “in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society”. The Minister may well face constitutional challenges pursuant to the restriction and limitation of such rights.
What you need to know:
- Civil matters
Critically, the directions state that “all time limits imposed by any rule of court” are suspended until the lapsing of the declared national disaster (this is a curious direction given that the remainder of the directions, tied to the lockdown period, will only apply until 16 April 2020 and should, perhaps, be revisited by the Minister). This suspension of the time limits imposed by the rules is, in effect, far more extensive than the dies non which are ordinarily prescribed in that the suspension applies, not only in relation to the time periods for the filing of pleadings and notices to defend, but to all time limits imposed by the rules. As a further point, it should be born in mind that any time limit imposed by an order of court will not be affected by the issuing of the directions and thus must be complied with.
For the duration of the lockdown, only matters which are “urgent and essential services” shall be heard in court. Heads of Court are, however, permitted to authorise the hearing of matters through teleconference or video conference facilities. Matters scheduled to be heard during this period must be postponed.
The wording of direction 5, pertaining to civil matters, is somewhat clumsy. While urgent matters can be understood in the context of what normally defines urgency (see our article here), “essential court application” is not clearly defined, though “essential services” are those listed in the lockdown regulations. Given that the lockdown is for a limited time period only, we don’t expect clarification on these points; however, we would suggest that applications involving essential services would be classified as essential matters and could thus proceed, provided that such matters are also urgent.
The service of documents and execution by Sheriffs are limited to urgent and essential matters, including where claims may prescribe, matters involving protection orders etc.
All evictions and executions of judgment are suspended until the lockdown ends.
- Criminal matters
Criminal trials and hearings scheduled to take place during the lockdown period have been directed to be postponed, except where “the interests of justice” require otherwise. Where detainees are awaiting trial, they will not be brought into the court precinct unless it is for their first appearances, bail applicants or where special arrangements have been made with the relevant judicial officers. Accused persons arrested for petty offences are to be released and warned to appear on a future date.
- Legal practitioners
Legal practitioners, advocates and attorneys, are classified as essential services in terms of the lockdown regulations. As such, practitioners involved in litigation processes may obtain a certificate from the Legal Practice Council in order to conduct urgent and essential matters.
If you or your company require advice in urgent or essential matters, we are still able to assist you.
- Restricted access to court precincts and safety measures
Judicial officers are required to maintain safety measures and social distancing requirements, including limiting the number of persons in court and the court precincts.
- The Master’s Office
The directions have curtailed the functioning of the Master’s Office to urgent and critical matters only.
- Family Law matters
Family law matters involving, inter alia, foster care, adoption, removal of children and maintenance may, subject to exceptions, be heard during the lockdown period.
Applications for interim protection orders, against domestic violence and harassment, may still be heard. As many persons are confined to their homes over this period, this exception to the lockdown’s restriction of parties’ access to court is critical.
- Deviation in the interests of justice
Direction 12 provides a valuable and worthy exclusion whereby a judicial officer presiding in any matter in court, may order that the application of the directions may be deviated from “where the interests of justice so require”.
The COVID-19 crisis, the national disaster and lockdown which has been declared are unprecedented and new regulations are being published daily (see the Government Printing Works published Gazettes).
Notwithstanding the lockdown and the limited access to courts, Dingley Marshall remains open for business, with our attorneys working from home and using intelligent business solutions, video and teleconference facilities to remain available to clients. Please feel free to contact us for advice and assistance during these uncertain times.