The South African judiciary has been placed under immense pressure to move from its traditional approach to a more innovative approach in order to balance the access to justice with public health concerns during the COVID-19 pandemic.
In response to the COVID-19 outbreak, courts across the world have been forced to close their doors and resort to other ways to keep the justice system alive. For the first time since the 1918 Spanish flu pandemic, the Supreme Court of the United States closed its doors to the public indefinitely, postponing all oral arguments out of concern for the health and safety of the public and the Supreme Court’s employees. Similarly, Italy’s court system has also been shut down, while France’s courts have suspended most non-essential proceedings while still hearing urgent criminal matters and emergency proceedings.
Section 34 of the South African Constitution provides the right to access to courts: "Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum." Despite the dire circumstances, access to justice is fundamental to South Africa’s democratic framework and cannot be disregarded.
South African courts are currently open for urgent matters and essential matters arising as a result of disaster management. Courts have not taken kindly to lawyers breaching the national lockdown regulations under the guise that their matters were urgent and essential. Lawyers in breach of COVID-19 disaster management regulations have been reported to the Legal Practice Council.
In this uncertain time, many seek legal advice. Some are experiencing violations of their fundamental rights and liberties while others seek to understand the implications of the lockdown on their business’s operations. South Africa already has alarming crime statistics. As the lockdown continues, we have seen an increase in liquor and food stores being looted, police brutality and individuals contravening the lockdown regulations. All of these have legal consequences and require the involvement of the judiciary. The function of the judiciary is imperative during this time to ensure that amidst a pandemic, the rights and values of the Constitution are upheld.
On 17 March 2020, in response to the COVID-19 outbreak, Gauteng High Court Judge President Dunstan Mlambo announced the closure of the Gauteng High Court to the public. According to Mlambo, "save for Urgent Court matters, judges and staff will deal only with matters that are already enrolled for hearing; provided that parties may agree to postpone matters (including unopposed matters) that have been enrolled during this period. In such event, parties must alert the relevant judge’s secretary of any agreed postponement as a matter of urgency … No practitioner/messenger/member of the public may enter the Court building for purposes of issuing new process save for matters that are prescribing and for Urgent Court matters. "
According to the directive issued by Mlambo, judges who are not scheduled for sittings in court are required to work from home while the judge may determine whether his/her secretary may also work from home. Furthermore, judges’ secretaries must remain available and accessible to carry out whatever duties may be required from home, including monitoring and responding to emails, maintaining telephone contact with practitioners, etc. Individual case managements should be conducted by teleconference/Skype per arrangement between the parties and the appointed judge. When corresponding with the registrar’s office, legal practitioners are required to communicate via email regarding the filing of all further notices, heads of arguments and pleadings. Furthermore, enrolment of new matters may only be done via CaseLines.
CaseLines is a digital court system that enables legal practitioners to share evidence in preparation for cases while also hosting virtual hearings and trials. The CaseLines system was piloted in 2019 in the Gauteng Divisions for civil matters in Pretoria and Johannesburg, with the national roll-out to be implemented in each province in the months to come. The South African Office of the Chief Justice has chosen to implement CaseLines as a vital tool in achieving its goal of a single transformed and independent judicial system. CaseLines enables legal practitioners to work efficiently in a secure online environment, saving both time and money while promoting sustainability and improving access to justice in South Africa.
Conversely, on 19 March 2020 Chief Justice Mogoeng Mogoeng issued a directive stating the following: "Persons with a material interest in a case, such as litigants, accused, witnesses, those who may be needed to provide support such as those accompanying children, victims of domestic violence and/or sexual abuse, elderly and people with disabilities, family members, representatives of special interest or support groups and members of the media will be permitted to enter the court precinct. Non-essential visitors will only be allowed into the court precinct with the permission of the Head of Court."
In addition to this, on 17 April 2020 Mogoeng issued further directives that are applicable to the extended lockdown period, operating concurrently with the directives issued on 19 March 2020. He stated that "only urgent applications and urgent matters arising from the activities associated with disaster management may be heard in open court during the lockdown period, provided that the judge or magistrate (hereafter judicial officer) hearing the matter may, if he or she deems it necessary, having regard to the exigencies of each case, hear any such matter through video conferencing or other electronic means which are appropriate in the circumstances, after consultation with the parties concerned … All civil trials enrolled for hearing during the lockdown period shall forthwith be removed from the trial roll, and their re-enrolment shall be in accordance with a procedure determined by the Head of Court.
There shall be no open court sittings during the lockdown period, save for urgent applications … which shall include bail applications. There shall be no judicial case flow management conferences held before a judicial officer in chambers or civil roll call hearings convened during the lockdown period. Case management conferences enrolled during the lockdown period shall be removed from the roll and enrolled on dates immediately after the lockdown period; provided that the judicial officer concerned 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 light of the health implications, it is understandable and necessary that court proceedings are not open to the public. The judiciary should consider live streaming hearings and trials that would have been open to the public. The current cases that are being heard are those which are urgent and of great importance, which implies that the public would most likely have an interest in it. Open justice is a cardinal feature of our democracy and legal system and should be given effect to through the available resources that modern technology provides.
Many countries have turned to modern technology in hopes of mitigating the effects of court closures. The COVID-19 pandemic has forced courts to change the way they operate, reconsider what needs to be done in person, and how much can be achieved through technological means. The call for courts to make better use of technology has been coming along for many years now. Under the traditional system, files often disappear, paper is wasted as documents have to be printed for all the parties concerned and there have been instances of fraud. Digital systems like CaseLines bring much efficiency and effectiveness to court administration, limiting the risk of fraud, adding value through evidence management, and saving the environment while also decreasing overhead costs. There’s never been a better time to go paperless.