South Africa: litigating during the national state of disaster

Since the declaration of the national state of disaster in South Africa in response to the coronavirus (COVID-19) outbreak, it has been anything but “business as usual” for most professionals. This is equally true for legal practitioners trying to navigate the directives regarding litigation and court process during the national state of disaster.

On 26 March 2020, directives were issued by the Minister of Justice and Correctional Services to clarify the position regarding court processes during the lockdown period. The directive contains provisions restricting the number of people allowed in courts across the country; allows for only urgent and essential matters to be heard during the lockdown period; and implements social distancing protocols in the courts.

These directives were revised on 31 March 2020. Importantly, the revised directive applies to the entire period of the national state of disaster, whereas the previous directive only applied to the lockdown period.

The revised directive has effected the following material amendments in relation to civil cases:

The 26 March 2020 directive allowed for the suspension of time periods imposed by any rule of court until the termination or lapsing of the period of the national state of disaster. This suspension has been removed in the revised directive. Therefore, unless a Judge President of a particular High Court, the Supreme Court of Appeal or the Chief Justice, issues a contrary directive, dies non does not automatically apply and normal time periods continue to run.
The 26 March 2020 directive provided that where the return date of an application, with the exclusion of protection orders, fell during the lockdown period, such date would be extended up to one month after the end of the lockdown period. This extension has been removed in the revised directive and will therefore not automatically apply.
The list of urgent and essential cases for the service of process and execution of writs by sheriffs is now limited to orders relating to COVID-19, domestic violence protection orders, protection from harassment orders, claims that are prescribing, urgent court process relating to hearings scheduled during the lockdown and family law matters.
The 26 March 2020 directive explicitly stated that all evictions and the attachment of execution orders for the period of the lockdown were immediately suspended. This provision has been removed and replaced with a new paragraph 5(d) which states that “the service and execution of other process by sheriffs, including evictions, are not essential, and are suspended for the duration of the lockdown”. Therefore, unless the service or execution by the sheriff relates to orders relating to COVID-19, domestic violence protection orders, protection from harassment orders, claims prescribing, urgent court process relating to hearings scheduled during lockdown and family law matters, the need for such service or execution remains suspended.

The following provisions relating to civil cases have remain unchanged in the revised directive:

Civil cases that are not identified as urgent and essential services may not be placed on the court roll for the duration of the period of lockdown. However, Heads of courts retain the discretion to 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; and
The Chief Registrar or Clerk of the Court, as the case may be, must inform the parties and their legal representatives of the new court date in writing.

Litigation in the usual course can be stressful, but litigation during the period of the national state of disaster requires legal practitioners to be even more attentive to the directives being issued by the Minister of Justice and Correctional Services and the Chief Justice and various Heads of Court, as it is possible that further directives will be issued in the coming weeks as the situation unfolds.

Aslam Moosajee

Dispute Resolution | Director

+27 82 461 5917

amoosajee@ensafrica.com

Vishana Makan

Dispute Resolution | Associate

+27 66 493 2372

vmakan@ensafrica.com

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.

No information provided herein may in any way be construed as legal advice from ENSafrica and/or any of its personnel. Professional advice must be sought from ENSafrica before any action is taken based on the information provided herein, and consent must be obtained from ENSafrica before the information provided herein is reproduced in any way. ENSafrica disclaims any responsibility for positions taken without due consultation and/or information reproduced without due consent, and no person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against ENSafrica and/or any of its personnel. Any values, such as currency (and their indicators), and/or dates provided herein are indicative and for information purposes only, and ENSafrica does not warrant the correctness, completeness or accuracy of the information provided herein in any way.