This website uses cookies to ensure you get the best experience. If you continue to use this site without changing your cookie settings we assume you consent to the use of cookies on this site.

find an article

dispute resolution | 12 May 2020
BY Aslam Moosajee , Vishana Makan AND Joshua Davis
ENSight

dispute resolution


South Africa: Litigating during level 4

On 2 May 2020, the Chief Justice of South Africa issued a set of directives in terms of the Superior Courts Act, 2013, which apply to the management of courts for the remainder of the national state of disaster. In terms of these directives (which repeal the directives issued by the Chief Justice on 17 April 2020):

  • the general directive that only urgent applications and urgent matters arising from activities associated to disaster management may be heard in open court during the lockdown period has been removed;
  • criminal trials set down for hearing during the period of the national state of disaster will be dealt with in a manner to be determined by the respective Heads of Court;
  • civil trials that were enrolled for hearing during the national state of disaster, and have been re-enrolled or not removed from the court roll, will be dealt with in a manner to be determined by the respective Heads of Court;
  • regarding appeals, the Constitutional Court may process and dispose of all matters in accordance with its Rules and the Constitution of South Africa, subject to changes to the processes as necessitated by the national state of disaster; and
  • Judicial Case Flow Management conferences enrolled and civil roll call during the period of the national state of disaster will be dealt with in a manner determined by the respective Heads of Court. The Head of Court may, where appropriate, communicate electronically with the parties and issue such directives as may be necessary to ensure the trial readiness of any of the matters.

In addition to the directives issued by the Chief Justice, on 3 May 2020, the Minister of Justice and Correctional Services issued directions in terms of the lockdown regulations. These directions withdrew the directions previously issued by the minister on 31 March 2020, and are to be read in conjunction with the directives issued by the Chief Justice and the Heads of Court in terms of the Superior Courts Act, 2013. The minister directs, inter alia, that:

  • entry into court rooms, court houses or judicial service points may only be allowed in respect of “permitted services” as outlined in the directions. A “permitted service” is defined under the lockdown regulations, but also includes services listed in Annexure 1 to the 3 May 2020 directions (the “Annexure”), and:
    • in relation to a legal practitioner, it includes:
      • professional legal work on litigation which is essential to be brought or enrolled for hearing, or attended to during alert level 4;
      • administrative and preparatory functions such as consultations, commissioning of affidavits, filing of court papers at court, accessing documents and utilising equipment in the office;
      • administrative work by a legal practitioner to ensure compliance with legal obligations which is essential to be complied with during alert level 4; and
      • any other professional legal work by a legal practitioner which, if not performed during alert level 4, is likely to result in substantial injustice or severe prejudice to an affected party;
    • in relation to a sheriff, it includes:
      • essential administrative actions before and after the receiving of court processes such as the capturing of data in respect of returns of service which, if not performed during alert level 4, is likely to result in substantial injustice or severe prejudice to an affected party; and
      • administrative work to ensure compliance with legal obligations which is essential to be complied with during alert level 4;
    • a Small Claims Court may not sit during alert level 4;
    • civil cases that are not urgent or which are not classified as “permitted services” in terms of the Annexure may not be placed on the roll during alert level 4. However, Judicial Officers have the discretion to authorise the hearing of all matters on a roll, including through an electronic medium, which can dispense with the need for a physical hearing;
    • as a general rule, evictions and all removals and attachments of property are suspended during alert level 4;
    • parties involved in a civil dispute may consider alternative dispute resolution mechanisms to resolve the dispute and may:
      • refer the dispute to mediation before or after the commencement of litigation, but before the granting of judgment; or
      • refer the dispute to arbitration before the commencement of litigation;
    • judges, magistrates, legal practitioners and sheriffs are permitted to travel between their places of residence, offices and courts within their provincial areas of jurisdiction for purposes of rendering “permitted services”, provided that they must present proof of appointment to their office together with any form of identification (if required by a law enforcement officer);
    • the head of an institution must issue permits to individuals within their institution for the performance of “permitted services”; and
    • the service of process and the execution of writs and warrants by sheriffs are limited to urgent or “permitted services” cases. In this regard, it is worth noting the following:
      • The Annexure includes the “issue of all court processes and proceedings and filing of papers relevant to pending proceedings” as a “permitted service” during alert level 4;
      • As the definition of “permitted services” is very broad, it is not entirely clear what types of new process can be served by a sheriff during alert level 4. Some sheriffs are adopting the approach that they will only serve urgent process, process that is essential to be brought during alert level 4, or the specific types of process listed in the Annexure such as taxations, debt review applications, and divorce proceedings;
      • However, if service of process is regarded as an “administrative and preparatory function” by a legal practitioner which has been included in the definition of a “permitted service”, legal practitioners may argue that they are able to effect service of process that cannot be effected by a sheriff. Having said that, the directions, as stated above, only make provision for legal practitioners to travel between their places of residence, offices and courts for purposes of performing a “permitted service”, which would appear to prevent legal practitioners from serving process on a party to the litigation;
      • Therefore, until such time as further guidance is issued to clarify this issue, it is advisable that, for process which cannot be served by a sheriff under the 3 May 2020 directions, legal practitioners seek the consent of the other party(ies) to bypass the requirement of service by a sheriff.

On 8 May 2020, the Office of the Judge President of the Gauteng Division of the High Court of South Africa issued a memorandum on the application of its directives of 25 March 2020 and 24 April 2020. This memorandum was revised on 11 May 2020, and aims to improve functionality and efficiency in the application of the Directives issued for the Gauteng Divisions of the High Court. A few important points for legal practitioners to note are the following:

  • The general principle is that a litigant that wishes to make oral submissions is entitled to do so and the Judge seized of the matter must exercise discretion as to how oral submissions ought to be facilitated. This implies that the matter may be removed if it is not possible to facilitate an effective oral hearing;
  • Applications to set down new matters that were lodged after 1 May 2020 may be set down in accordance with the usual practice of the courts, save that process must be addressed to the designated email addresses contained in the directives and not delivered physically to the courts. When emailing the designated email address for set down, care must be taken to:
    • email the relevant email address only;
    • send the email only once;
    • send the email between 09:00 and 13:00 on court days; and
    • ensure that no more than 15 processes per law firm are sent per day.
  • In opposed motions with multiple parties, and where the matter is either complex or involves several issues of either a procedural or substantive nature, counsel representing the parties must hold a pre-hearing conference and prepare a coherent agenda to present to the presiding Judge addressing the efficient conduct of the hearing;
  • The agenda ought to be presented to the presiding Judge in advance of the hearing, preferably at least five days prior to the hearing, in a joint practice note to facilitate, where necessary a pre-hearing conference with the Judge. The Judge will not be bound by the agenda and may exercise a discretion to vary it;
  • All applications that are traditionally dealt with by a Judge in chambers will only be dealt with if uploaded onto CaseLines. Matters that have already been issued in physical format will not be dealt with, and the responsible Registrar will notify the litigants to upload the papers onto CaseLines;
  • It remains the responsibility of litigants to upload papers onto CaseLines, however, if this is not done, the matter will not be automatically removed, provided that a satisfactory explanation can be offered to the Judge as to why the failure to upload ought to be condoned;
  • Regarding the service of process by the sheriff, litigants may invite the office of the relevant sheriff to CaseLines to grant the sheriff remote access to the papers;
  • Regarding urgent applications:
    • An affidavit from counsel is no longer required, but rather a certificate from counsel or the attorney who is to appear in the matter, containing the following the statement:

“I …………………………………hereby certify that this matter is of such urgency that it must be heard during the period of Lockdown, or during a period during which restrictions are in place relating to the free movement of persons owing to measures to combat the COVID-19 infection pandemic.”

  • . As of 8 May 2020, the Senior Judge’s Secretary will no longer issue case numbers except for that immediate week’s roll during office hours and in respect of urgent applications brought after hours. Legal practitioners are to revert to the usual practice regarding the issuing of case numbers in urgent matters. The relevant email address in Pretoria is GeneralofficePTA@judiciary.org.za and in Johannesburg is JHBissuing@judiciary.org.za.
  • The primary channel of communication in relation to any aspect of a matter is to the relevant Registrar’s email address. Care must be taken to provide the Registrar with the correct email addresses to be used for any CaseLines and/or video link invitations; and
  • Where parties experience difficulties in uploading papers onto CaseLines or with case creation, queries ought to be sent to the following designated email addresses:

In conjunction with the revised memorandum, the Office of the Judge President of the Gauteng Division of the High Court of South Africa also issued a consolidated directive on 11 May 2020 which withdraws its directives of 25 March 2020, 2 April 2020 and 24 April 2020, and consolidates the substance thereof. Some directives, such as Covid-19 related restrictions on movement, which predate the 11 May 2020 consolidated directive, have been retained to avoid confusion. The consolidated directive makes the following important points:

  • Regarding the logistics of video links, and in an effort to avoid setting up individual links for each matter, in the Unopposed Motion Courts, Divorce Courts, Judicial Case Management rolls, Case Management Conferences, Interlocutory Court, Rule 43 Court and the roll for Admissions As Legal Practitioners, where each of these courts have rolls comprising several matters, there is an option for a single link to be set up at the Judge’s instruction and for the whole roll to be published to the Professional Bodies and relayed to interested attorneys and counsel. Counsel appearing will then join the video hearing and take turns at having their matters heard. This option subject to the discretion of the presiding Judge;
  • In respect of urgent applications, in addition to the instructions contained in the Judge President’s revised memorandum, the consolidated directive of 11 May 2020 state the following:
    • The provisions of the 25 March 2020 directive relating to urgent applications are withdrawn in their entirety and replaced by the relevant provisions of the consolidated directive;
    • Where the urgency of a matter justifies it being brought outside of office hours, the contact numbers for the Urgent Court are: Pretoria – 065 859 4819 and Johannesburg – 081 727 7734 / 082 573 5233;
    • Urgent papers are to be uploaded onto CaseLines, or where that cannot be achieved, the papers shall be sent by email to an address as directed by the Urgent Court Judge. Where the uploading of papers onto CaseLines is impossible, a physical set of papers may be delivered as directed by the Urgent Court Judge, which must include an affidavit explaining why it was impossible to transmit the papers via CaseLines or email;
    • Any person applying for urgent relief in person must, prior to filing any papers, communicate with the Urgent Court Judge’s Secretary to determine whether the Judge will authorise the filing of papers, whether on CaseLines, via email or physically;
    • Orders will be communicated by email to the parties and/or uploaded onto CaseLines;
    • Litigants may contact the following numbers for support in relation to Caselines: Pretoria 067 862 9339 and Johannesburg matters 067 208 775;
    • The enrolment of an allegedly urgent matter which is found not to have warranted a hearing in this period may, at the discretion of the presiding Judge, result in punitive costs being awarded and the culpable counsel and attorney being interdicted from receiving any fees for all work relating to the matter.
  • Regarding the issuing of process, prescription of claims and dies non, the following is to be noted:
    • Following concerns from litigants and members of the profession regarding obligations to file court process and/or deliver any documents within stipulated periods, which periods fall within the lockdown period, the following directives will apply until further notice and are issued to acknowledge the fact that a Head of Court does not have the power to declare the national lockdown period to be dies non:
    • Any litigant who is obligated by statute or by a Rule of Court to serve and file court process and/or deliver any document within the lockdown period, may comply with such obligation, as stipulated in the consolidated directives:
      • The court process and/or document may be uploaded onto CaseLines. The act of uploading and the date thereof will be deemed to be the effective date and service on all relevant parties as well as proper filing in terms of the Rules of Court;
      • If the matter is not registered on CaseLines, the process and/or document may be transmitted by email to the relevant parties, who may not withhold their email addresses unreasonably. The email transmission will be deemed to be effective service on the parties provided that proof of transmission and/or delivery is filed. For filing purposes, the relevant process and/or document, with the proof of transmission and/or delivery, must be transmitted to the following email addresses: Pretoria – PTAfiling@judiciary.org.za; and Johannesburg JHBfiling@judiciary.org.za;
    • In the event of non-compliance or partial compliance with any provision in a statute or a Rule of Court to serve and file court process and/or deliver any document during the lockdown, and which is a result of the restrictions imposed by the national lockdown and its implications for the litigant or the litigant’s legal representatives, condonation may be granted by a court in respect of any shortcomings in compliance.

Aslam Moosajee

Dispute Resolution | Director

 +27 82 461 5917

amoosajee@ensafrica.com

Vishana Makan

Dispute Resolution | Associate

+27 66 493 2372

vmakan@ensafrica.com

Joshua Davis

Dispute Resolution | Candidate Attorney

+27 72 608 6733

jdavis@ENSafrica.com