(Apr. 23, 2020) On March 31, 2020, the Minister of Justice and Correctional Services issued directions to “address, prevent and combat the spread of COVID-19 in all courts, court precincts and justice service points in the Republic of South Africa.” (Directions, preamble.) The directions are valid for the duration of the national lockdown, which the government originally imposed from March 26 through April 16, 2020, and which President Cyril Ramaphosa extended through the end of April.
Legal Authority for the Directions
The authority to issue the directions is rooted in the declaration on March 15, 2020, of a national state of disaster under the 2002 Disaster Management Act (DMA). According to President Ramaphosa, the declaration was made to enable the government to “have an integrated and coordinated disaster management mechanism that will focus on preventing and reducing the outbreak of this virus.” During a state of disaster, the act allows the government to issue regulations to restrict, among other things, the movement of persons and goods “to, from or within the disaster-stricken or threatened area, … the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area[,] … [or] any other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster.” (DMA § 27(2).) Similarly, the DMR state that “[a]ny Minister may issue and vary directions, as required, within his or her mandate, to address, prevent and combat the spread of COVID-19, from time to time, as may be required, including … steps that may be necessary to prevent an escalation of the national state of disaster, or to alleviate, contain and minimise the effects of the national state of disaster.” (Disaster Management Regulations (DMR) (as amended) § 10(8) (2004).)
Restriction on Access to Courts
The directions restrict entry into courts and court precincts to instances “in respect of urgent and essential matters.” (Directions § 2.) These include “[u]rgent or essential court application and hearing including a bail application in case of first appearance of an accused person, or a matter which if not enrolled during the state of disaster, will lead to substantial injustice.” (§ 1.) In such circumstances, only persons who have material interest in a case (including litigants, witnesses, and members of the media) would be allowed in courts so long as the relevant judicial officers restrict the number of persons who can be inside a court room in accordance with the applicable safety measures and social distancing rules. (§ 2.)
Regardless of whether they have a material interest in a case, certain categories of persons are barred from entering courts and court precincts: persons who entered South Africa a week before, during, or after the declaration of the national state of disaster; persons who have had any contact with a person from a high risk country (Germany, Italy, Iran, South Korea, Spain, the United Kingdom, the United States, and France); and persons who have come in contact with persons who have tested positive for COVID-19. (§ 2.)
The directions postponed “[a]ll criminal trials enrolled during the lockdown” to dates after that period; however, courts are to try cases in instances where it is in the interest of justice to do so. Persons in detention awaiting trial may not be brought to courts except for “first appearance, bail applications and matters where special arrangements have been made with the judicial officers involved in the matters.” In other cases where the accused is in detention, trials must be postponed using audiovisual remand centers in correctional facilities. All cases where the accused persons are not in detention are postponed until after the end of the lockdown, at which point summons with new trial dates are to be sent to them. Persons accused of committing a petty offense must be released with a warning to appear in court at an appointed future date. (§ 3.)
The directions state that all civil cases not deemed “as urgent and essential services” may not be placed on the court roll for the period of the lockdown; however, heads of courts may “authorise the hearing of matters through teleconference or videoconference or any other electronic mode, which dispenses with the necessity to be physically present in a courtroom.” (§ 5.)
The directions also state the service of process and execution of writs is to be restricted to urgent and essential cases, including service and execution of court orders relating to COVID-19, service of domestic violence protection orders, and service of protection from harassment orders. Evictions are suspended for the duration of the lockdown. (§ 5.)
If a judicial officer presiding over any matter in court deems that the interests of justice so require, he or she may waive the application of any part of the directions.
Chief Justice Directives
On April 16, 2020, Chief Justice Mogoeng Mogoeng, on the basis of section 165(6) of the 1996 Constitution and section 8(3) of the 2013 Superior Courts Act, issued directives for the management of superior courts (the Constitutional Court, Supreme Court of Appeal, High Court, and any other court that has the same status as the High Court) specifically applicable “to the extended period of the lockdown as proclaimed by the President” on April 9.
These directives also limit court hearings during the lockdown mostly to “urgent applications and urgent matters arising out of or from the activities associated with disaster management.” (§ A(2).) With regard to unopposed applications already enrolled for hearing, the chief justice directed that registrars identify applications that could be addressed via videoconferencing and facilitate such hearings. (§ D(i)(9.) The chief justice also directed that parties to opposed applications “file their heads of argument electronically” and make an effort to reach to agreement to waive oral arguments. (§ D(ii)(11–12.) If parties fail to reach an agreement or the presiding judge deems it necessary, arguments must be heard via videoconference. (§ D(ii)(13.)