Access Denied

The Impact of lockdown regulations on the access to courts

By: Malik Ntshangase
Candidate Attorney, LLB (University of the Western Cape) and LLM (Commercial Law) (University of Cape Town)
30 July 2020

The recent outbreak of the Covid-19 virus has led to unprecedented worldwide decisions being taken by world leaders in efforts to combat the spread of the virus. In South Africa, citizens were put on notice with regards to the severity of the virus when President Cyril Ramaphosa announced a National State of Disaster on 15 March 2020. This was then followed by a further announcement by the President on 23 March 2020, initiating a national lockdown.

The implementation of the national lockdown has led to a number of industries grinding to a complete halt, as the lockdown regulations provide that only essential service providers are allowed to conduct business during the lockdown period. Courts will also remain operational and the administration of justice will not be compromised as the operations of the courts are regarded as essential services.

Even though courts would remain open, they would not operate as per usual. The Minister of Justice published Directions in terms of Regulation 10 of the Disaster Management Act, which provide that only matters that are ‘urgent and essential’ will be dealt with by Courts during the state of disaster and throughout the lockdown period. Urgent and essential matters include matters relating to covid-19, domestic violence protection orders, protection from harassment orders and service of urgent court process in family law matters. This list is, however, not exhaustive.

As a result, the right of access to the courts has been limited. This limitation is, however, in line with the limitation clause contained in section 36 of the Constitution. This limitation is justifiable based on the importance of the purpose of the limitation, in terms of section 36(1)(b). This has meant that access to the court is now restricted to persons with material interest in cases, such as accused persons, witnesses and victims of domestic violence and sexual violence.

The regulations put in place, due to Covid-19, are most certainly going to result in court matters being backlogged. This is particularly because, presently, courts are only prescribed to hear urgent matters. This has been the case during the level 4 lockdown as well. However, as the country moves down the alert level system put in place by the government, the restriction on court procedures may also be eased. Currently, attorneys cannot have their matters enrolled on the court roll, unless these matters are deemed as being urgent. This unfortunately means that courts and legal firms are currently piling up with matters which were removed from the court roll amid the level 5 and 4 lockdown period.

This inevitably means that courts are expected to experience not only a backlog in cases which were enrolled prior to institution of the lockdown, but also an influx of new matters as attorneys and article clerks will swarm to the courts to hurriedly ensure that their matters are being enrolled at the soonest available dates. The removal of maters on the court roll and the restriction of urgency is going to result in a delay in judgments and orders being granted with regards to matters which have been removed from roll, as a result of the lockdown restrictions. This indicates that parties to the said matters may not be in position to get recourse for their claims.

The implementation of the level 3 lockdown regulation has allowed for the easing of some of the court restrictions, which has resulted in an increased number of people being allowed at the courts. This has also allowed legal practitioners to proceed with issuing and serving court documents, however they can only do so in small batches. The restriction on issuing and serving of court documents will not only cause a backlog for the courts, but it has also caused significant financial constraints on law firms as they have been unable to charge fees for services rendered, due to the restrictions placed on the operations of the courts.

However, it is not all doom and gloom, there are lessons to be learnt from the circumstances created by the lockdown restrictions. For instance, as mentioned above, during level 5 and 4 lockdown periods, the issuing and filing of documents at courts was restricted to matters which were deemed as being urgent, in attempt to limit the number of persons in the court building. This will certainly create a huge delay in matters being heard and further contribute to the backlog at court. However, if our courts had a digitalised system to allow for the online issuing and filing of court documents, then the delay of matters being heard could be prevented.

A digitalised system is not a new idea for South African courts, the North and South Gauteng High courts have introduced a paperless system. The idea of a paperless system was first introduced in 2019 by the Judge President of the Gauteng Division of the High Court, Dunstan Mlambo. The Judge President explained why the need for change in our courts is necessary. He stated that the current system was not only time consuming but also presented numerous issues for the judiciary. For instance, courts are constantly crowded with lines of legal practitioners looking for case files, which would on numerous occasions disappear without trace.

The digital system which has been implemented in the Gauteng High courts, Pretoria and Johannesburg, allows for virtual hearings with regards to matters on the court roll. This system would allow courts to continue to adjudicate on matters during the lockdown period as it complies with social distancing requirements. This would allow for courts to continue to operate at a much more efficient degree, as opposed to what is taking place at the moment. Virtual hearings would ease the projected backlog of cases which would need to be heard as soon as the lockdown regulations are lifted.

The judiciary is yet to amend certain court procedures in order to allow for a completely electronic system mainly, due to the fact that the new system is still in its trial phase. The trial phase also affords the judiciary an opportunity to assess whether our resources have the requisite capacity to allow for a completely digital court system. Our infrastructure will require extensive development and improvement in order to allow for the successful integration of a digital court system.

There is codified legislation which provides that parties to legal proceeding are not required to provide the court with an acknowledgement of receipt from their counterpart, in order to give legal effect to documentation which was sent electronically. This is provided for in the Electronic Communications Act.

The Electronic Communication Act further provides that information is not without legal force and effect solely because it is in the form of a data message, and that data messages may be presented in court as evidence. This clearly provides the courts with a basis for allowing for evidence and legal documents which are purely in an electronic format. The judiciary would have to, however, provide rules and regulations to assist legal practitioners to navigate the new system, as well as to inform the public on how electronic documents may be signed in order to give rise to binding obligations.

Implementing a paperless system in our courts will not only improve the safety and efficiency of our legal system, but will also bring us closer to achieving access to justice for all.

Sources referenced in this article
1. Global Legal Monitor
2. Covid-19: How the courts work during lockdown. By Alison Tilley
3. Litigation during the lock-down. By Trevor Boswell & Simone Gast
4. Justice Services during Level 4 Lockdown
5. Level 4 lockdown protocols to be observed at courts. By Zelda Venter
6. Gauteng High Courts on a journey to go paperless. By Kgomotso Ramotsho

This article is provided for information purposes only and not for the purpose of providing legal advice. Tim du Toit & Co Inc does not accept responsibility for any loss or damages suffered due to reliance on the contents hereof.