COVID-19: Law in a time of lockdown

24 Apr 2020 2:36 pm by Matthew Thomson

While lawyers continue to provide advice, consulting and commercial services, the directives issued in terms of the Disaster Management Act will have a profound effect on some litigious matters and the way matters are handled in court, as they will restrict and limit access to courts and judicial functions.

Written by Matthew Thomson, an Associate at Dingley Marshall, for LexisNexis South Africa.

[Durban, 24 April 2020]

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 26 March 2020, the Minister of Justice Ronald Lamola, after consulting with the Chief Justice, issued directions in terms of Regulation 10 of the Disaster Management Act regulations published on 18 March 2020. These were repealed and replaced by directions on 31 March 2020 and amended further amended on 16 April 2020 to apply to the extended period of the lockdown.

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 30 April 2020.

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”.

What you need to know:

Civil matters

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 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.

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.

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).

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