You may be wondering if attorneys are included in the list of essential services. Paragraph B of Annexure B of the Regulations provides a list of essential services during the lockdown. One of these listed services is the “services related to the essential functioning of courts, judicial officers, Master of the High Court, Sheriffs and legal practitioners”. Therefore, in short, an attorney is an essential service. However, their services are limited during the lockdown period. The court directions are put in place to define and regulate these limitations.
Access to court
As it stands there is restricted access to courts in South Africa during the nation-wide lockdown. Only persons with a material interest in a case which is essential or urgent may enter a court. These include litigants, accused, witnesses and the media, amongst others. Court management and security officials will limit the number of people entering courts for the purposes of social distancing. The court directions define social distancing as one square meter distance between people at all times.
Civil matters which are not identified as essential or urgent will not be placed on the court roll during the lockdown. Serving of court processes and execution of Writs of Execution are also limited to cases which are essential and urgent, including:
- service and execution of Court orders relating to the virus;
- service of domestic violence protections orders;
- service of process relating to claims which are prescribing;
- service of urgent court process relating to court hearings scheduled during the period of lockdown; etc. (see the court directions for the full list).
Other services and executions by Sheriffs are suspended for the duration of the lockdown. The complete list of court directions can be accessed here: https://bit.ly/covid19_courtdirections.
It should be noted that a matter which is urgent to the litigant, might not be urgent in the legal sense and stands to be struck from the court roll. It is suggested you consult your attorney to determine whether your matter constitutes urgency or not.
In addition, the matter will now also need to pass the “essential” test. For example, an eviction is not essential and is specifically stated as such in the court directions. Certain family law services will be permitted.
Judge President’s Directives
On 25 March 2020, the Judge President of the Gauteng Division of the High Court of South Africa issued a directive regulating the court process during the lockdown.
Among these directives are the following:
- Urgent matters will still be dealt with in a regulated way. The attorney and/or advocate appearing is directed to sign a certificate, certifying that the matter is urgent and needs to be heard before 21 April 2020. Should the presiding Judge find that this matter not be urgent, they have a discretion to punish with a punitive cost order.
- All other matters which were enrolled during the period of the lockdown are automatically removed from the roll with no order as to costs.
- Provision for issuing a new court process via e-mail for matters which are prescribing during the lockdown period.
Note that this directive only applies to the Gauteng Division of the High Court and it is suggested that you contact your local attorney for guidance on your Division’s directives.
It should be noted that our courts are still empowered to pronounce on the validity of the declaration of the national state of disaster as well as to challenge any regulations arising from it. In the matter of Hola Bon Renaissance Foundation v The President of the Republic of South Africa and others (Constitutional Court case number: CCT52/2020), the applicant brought an urgent application for direct access in the Constitutional Court to declare this current declaration of the national state of disaster unconstitutional. The application was, however, dismissed due to the fact that the application bore no reasonable prospects of success based on the papers filed.
Each case will need to be dealt with on its own merits with regards to urgency but it is advisable that litigants proceed with caution during the lockdown period to avoid the risk of a punitive cost order being awarded against them.