Access to South Africa’s courts will be limited throughout the Covid-19 lockdown period, raising several uncertainties over legal matters that are already under way.
Chief Justice Mogoeng Mogoeng, in terms of section 8(3) of the Superior Courts Act, on 24 March delegated the authority to all Heads of Court in both the Superior Courts and Magistrates/Lower Courts to issue the necessary directives to enable access to courts for:
- urgent matters;
- bail applications;
- maintenance matters;
- domestic violence matters; and
- matters involving children.
He noted that section 37(3) of the Constitution empowers the courts to pronounce on the validity of the declaration of the state of emergency and related matters, so courts would remain open to hear challenges relating to the constitutionality or validity of the government’s current measures.
It seems the directives which have been issued to date, only some of which are detailed below, and those that are expected to be issued under the delegation of authority, would replace or supplement the several urgent court practice directives previously issued in response to the Covid-19 pandemic. These directives, among other things, restricted entry to court buildings, required parties to conduct certain legal processes electronically and allowed only for the hearing of urgent court matters and matters which are currently enrolled for hearing.
Directions issued under the Disaster Management Act
On 26 March 2020, the Minister of Justice and Correctional Services published directions in the Government Gazette to address, prevent and combat the spread of Covid-19 in all courts and justice service points in South Africa. These directions will apply during the lockdown period from midnight on 26 March 2020 to midnight on 16 April 2020, unless amended.
They provide that:
- access to courts and justice service points will be restricted to persons with a material interest in urgent and essential matters, subject to certain restrictions and requirements;
- criminal matters currently enrolled for hearing during the lockdown period will be postponed until after the lockdown, except for trials where the interests of justice dictate otherwise or where special arrangements have been made with the judicial officers involved;
- only urgent civil court matters and those relating to essential services will be enrolled and heard during the lockdown period. They may be heard using electronic means, subject to the relevant Head of Court's discretion;
- social distancing guidelines will be enforced;
- time periods prescribed by the Rules of Court in relation to non-urgent matters will be suspended and recommence after the lockdown period;
- Sheriffs will only service urgent and essential matters; and
- Courts must apply stringent health and safety measures.
Supreme Court of Appeal
On 26 March 2020, the President of the Supreme Court of Appeal issued an urgent court practice directive about the management of cases during the lockdown period. It states that the Supreme Court of Appeal will remain open only for the limited purpose of receiving due court process and adjudicating urgent matters.
Gauteng Division of the High Court of South Africa
On 25 March 2020, Judge President Mlambo issued an urgent court practice directive which applies to both the Johannesburg and Pretoria High Courts and is effective from midnight on Thursday, 26 March 2020 until 09h00 on Monday, 20 April 2020. It states that during the relevant period only the Urgent Court will be open to hear matters (and these hearings and legal processes will be handled electronically, unless this is not possible under the prevailing circumstances). It is important to note that:
"The enrolment of an allegedly urgent matter found not to warrant a hearing in this period may, at the discretion of the Judge seized with the matter, result in punitive costs being awarded and the culpable Counsel and Attorney being interdicted from receiving any fees for all work relating to the matter."
That means the Registrar of the Johannesburg and Pretoria High Courts will not issue any new case numbers and new matters in the normal course will not be enrolled during this period. Matters which are currently enrolled for this period will be removed from the roll and re-enrolled after the lockdown.
No legal practitioner, messenger or member of the public may enter the court building to issue new process.
As far as matters which will prescribe during the affected period are concerned, parties may transmit the relevant process electronically to the court. The date of transmission will be regarded as the date on which the process was issued.
On 2 April 2020, Judge President Mlambo issued a supplementary court practice directive which applies to both the Johannesburg and Pretoria High Courts. It states that any litigant, obligated by any provision in a statute or by a rule of court to serve and file court process and/or deliver any ancillary document during the lockdown period, may comply using electronic means. Condonation, where required, will be granted by a court if any shortcomings in compliance are attributable to the lockdown.
Judgements and orders which are ready to be handed down during the lockdown period will either be uploaded to CaseLines, or emailed to the respective parties.
Western Cape High Court
On 25 March 2020, Judge President Hlope issued an urgent court practice directive, with immediate effect, which will endure until at least 17 April 2020. It states that access to the Western Cape High Court will only be allowed for urgent motion applications and matters relating to bail, urgent maintenance, domestic violence and involving children. The issuing of any other matter is suspended and other matters which are currently enrolled must be postponed to later dates.
Service of legal process by way of Sheriff is also suspended until after the lockdown period.
The Court will accept service of the following documents during the lockdown period:
- Notice of Intention to Defend;
- Notice of Intention to Oppose; and
Parties are advised to consider extending the applicable timelines by agreement to avoid unnecessary travel during the lockdown period. Heads of argument in matters already set down may be sent to the relevant Judge's secretary or Registrar's clerk.
Only the relevant duty Judge, the relevant duty Judge's secretary, the Chief Registrar, the Court Manager, the relevant court staff and relevant security personnel will be allowed access into the court building, together with the practitioners and parties involved in the matters previously identified (which will be dealt with by the Court during the lockdown period).
In the absence of clear practice directives to the contrary or, in respect of certain Courts, any practice directive at all, it is uncertain how the nationwide lockdown will affect the practical operation of certain courts. Specifically, it is unclear how matters currently enrolled for hearing and further legal processes in matters already initiated will be dealt with going forward.
Please note that the above does not constitute legal advice. Further directions may be issued in due course, or may have been issued to date, in light of ongoing developments around the Covid-19 pandemic in South Africa.
We urge our clients to communicate with their Webber Wentzel legal representatives regularly to discuss how recent developments may potentially affect their matters and make alternative arrangements, if necessary.