On 23 March 2020, President Cyril Ramaphosa announced a nationwide lockdown commencing at midnight on 26 March 2020. In terms of the lockdown, everyone is to be confined to their homes for 21 days, save for certain workers involved in providing essential services. But what does all of this mean for current litigation?
On 24 March 2020, the Chief Justice of South Africa delegated his authority in terms of section 8(3) of the Superior Courts Act, 2013 to all Heads of Court in the Superior Courts and Magistrates/Lower Courts to issue such directives to enable access to courts in relation to any urgent matter, bail applications, maintenance, domestic violence related matters and cases involving children.
He went on to say that even in the case of a state of emergency, the Constitution empowers the courts to pronounce on the validity of the declaration of the state of emergency and related matters and accordingly, the courts have to stay open in case members of the public want to bring one challenge or another in relation to the constitutionality or the validity of the measures being implemented by the State.
Following from this, the Judge Presidents of the Western Cape, Gauteng, KwaZulu-Natal High and Limpopo Courts have issued urgent practice directives regulating their respective courts during and immediately after the lockdown.
In the Western Cape, it is directed that only urgent applications will be issued (including matters relating to Covid-19) and matters relating to bail, urgent maintenance, domestic violence-related matters and cases involving children will be heard.
The issuing of all other process is suspended and no new civil matters will be enrolled during the lockdown period. All civil matters already enrolled must be postponed to dates after the lockdown period arranged with the clerk. We understand this to mean preferential dates will be given.
All pre-trials that have already been allocated dates during the lockdown period will be postponed until after the lockdown period. Arrangements are to be made with the relevant judge. We also understand this to mean preferential dates will be given.
The service of all process by the sheriff is suspended, and no warrants of execution or subpoenas will be issued by the court. All criminal trials, criminal appeals and criminal pre-trials will be suspended during the lockdown period. The court building will not be accessible during the lockdown period except for the duty judge, his or her registrar, the Chief Registrar, Court Manager, relevant court staff and security personal, and practitioners and parties that have cases during the lockdown as directed.
In the Gauteng High Courts (Johannesburg and Pretoria), the directive is more stringent but at the same time, more progressive. The urgent court will conduct hearings only via teleconferencing or videoconferencing or any other electronic means. Only where it is impossible to arrange for such electronic means may the judge direct that a hearing may take place at which the parties’ representatives physically appear.
The papers will be uploaded on the courts’ CaseLines system and only when this is and service by email is impossible, can papers be physically delivered. In that event, an affidavit explaining why electronic means of service is impossible must accompany the papers. The applicant’s legal representative who is to appear must sign a certificate certifying that the matter is of such an urgent nature that it must be heard before Tuesday, 21 April 2020 and if it is subsequently found that it was not, the judge may award punitive costs and the culpable advocate and attorney may be interdicted from receiving any fees for all work relating to the matter.
All other matters enrolled during the lockdown period are removed from the roll and the Registrar will endeavour to accommodate the parties with the earliest dates after 28 April that can be allocated. All interlocutory matters may be enrolled after 28 April 2020 on such dates as are appropriate to the exigencies that the relief is sought to achieve. Opposed motions and appeals shall be re-enrolled after 4 May 2020 and unopposed motions after 28 April 2020. No person may enter the court buildings during the lockdown to issue new process. If a matter is prescribing, then the process may be transmitted to the courts via email. After the lockdown period, cases in which the parties have not been able to prepare will be postponed with no order as to costs.
In the KwaZulu-Natal High Court, two directives are relevant. They provide between them that the period of the lockdown will be regarded as dies non. In other words, it will not be counted in the calculation of the days allowed for the filing of any pleading, affidavit or notice. Save for matters involving children and bail appeals, all matters set down from 27 March 2020 to 15 April 2020 will be taken as postponed sine die. If any party regards their case as being urgent, that party may approach the Judge President or Senior Judge. The court will only entertain those matters that are truly urgent and practitioners are directed to take care to ensure that cases brought to court as urgent are of the utmost urgency, otherwise an adverse cost order will be made. The court will attempt to re-enrol matters postponed during the lockdown period, to give such matters preference.
In the Limpopo directive, the court has simply closed for business from 17h00 on 26 March 2020 until 16 April 2020 and no process, including urgent applications, may be issued. This is a strange response and does not take into account the fundamentally important role courts play in our society. It also runs counter to the Chief Justice’s directive. We think that sense will prevail if a member of the public needs the assistance of the Limpopo court during the lockdown.
The other courts across the country have not yet issued directives, but we expect them to do so. If they do not, however, cases cannot proceed during the lockdown. If a matter is truly urgent, though, access to courts must dictate that the courts are available to hear such a matter.
Accordingly, cases on the roll during the lockdown, are likely to be regarded as postponed. Hopefully, the respective Judges President will provide the parties with such postponed cases with preferential dates for the re-enrolment of the matter, thereby ensuring that justice is not too delayed.
If a litigation matter is an arbitration, then it cannot proceed because of the lockdown. We do not yet live in a world in which all the various role-players in the arbitration can hold the arbitration by Skype or some other video link, but we are not far off it. Accordingly, the arbitration will have to be postponed by agreement between the parties to a date suitable to all of them.
Another consideration is where litigation is likely to arise as a result of the state of national disaster.
For the construction industry, as with most businesses not operating at optimum efficiency and then stopping altogether for the lockdown, there are going to be delays in building, thereby exposing contractors to penalties, and owners of buildings to claims from future tenants who need the building completed on time.
For the insurance industry, there are going to be claims for business interruption.
For retail and supply chain management, the government has already passed the Consumer and Customer Protection and Disaster Management Regulations and Directions, which apply to the supply of specified goods and services during the period of the national disaster. These include toilet paper, hand sanitizer, surgical masks, surgical gloves, wheat flour, rice, long-life milk and other essentials. The specified services are private medical services relating to the treatment of the Coronavirus and its associated diseases.
The purpose of the regulation is to protect consumers from unconscionable, unfair, unjust and improper commercial practices during the national disaster and it prohibits a supplier from charging an excessive price for the goods to the detriment of the consumer. What is excessive is determined with regard to the price that was charge before the state of national disaster was declared. Unfair tactics in the marketing of the goods are also prohibited. The penalties for contravening the regulation are steep: a fine of up to ZAR1-million, a fine of up to 10% of turnover and imprisonment for up to 12 months. These regulations are a fertile ground for disputes.
The other aspect of retail in which disputes could arise is that all shops not selling essential goods will have to close. They will likely be in breach of their obligation to trade and will be unlikely to be able to pay their rent.
For the hospitality industry, hotels and restaurants are going to be empty and will likely be in breach of their obligation to trade. Moreover, they are unlikely to be able to meet their rental obligations. This will give rise to claims by landlords.
We are sure that there will also be many unforeseen claims arising out of this crisis. Here’s hoping it ends soon.
The above are general guidelines, please consult your legal advisors for specific advice.
For more information, please contact Michael Gradidge
Written by Michael Gradidge, Dispute Resolution, Director, ENSafrica