Legal practitioners violate the law during Lockdown

Author: Keshia Manolios

Service: Litigation & Dispute Resolution

This article discusses the recent judgment handed down in the High Court of South Africa, Mpumalanga Division, Middleburg in which legal practitioners were found to have attended court illegally as a result of their non-compliance with the court directives and the Lockdown Regulations.

The old adage “no one is above the law” means that any person who is found to be in violation of the law must be held accountable for their actions and legal practitioners are most certainly no exception. In fact, having regard to the oath that legal practitioners take in court when they are admitted in which they swear to uphold the laws of the Republic of South Africa, a legal practitioner’s conduct is held to a higher standard. Legal Practitioners are required to set an example to citizens. In The Administrator of Dr JS Moroka Municipality & Others v Thammy Goodwin Kubheka (“Moroka Municipality Case”) legal practitioners were found to have attended court illegally as a result of their non-compliance with the court directives and the “Lockdown Regulations” as they have come to be known.

The Moroka Municipality case had been launched by the applicants on an urgent basis on 23 March 2020 to be heard in the High Court of South Africa, Mpumalanga Division, Middleburg (“Middleburg Court”) on 31 March 2020, being day 5 of the National Lockdown announced by President Cyril Ramaphosa on 23 March 2020 (“National Lockdown”).

On the day of the hearing, the parties reached an agreement which resulted in the Judge hearing the matter, acting Judge Brauckmann HF, not hearing the full merits of the case and making an order, returnable on 7 May 2020. Judge Brauckmann did, however, deem the application extremely urgent as the dispute between the parties was preventing the residents of DR JS Moroka Municipality from receiving basic and essential services (access to water) and preventing the applicants from complying with the constitutional obligations.

The parties having reached an agreement, Judge Brauckmann turned his attention to the presence of the legal practitioners at the Middleburg Court in order to consider whether the legal practitioners had complied with the laws applicable during the National Lockdown.

On 4 April 2020, the Minister of Co-Operative Governance and Traditional Affairs (“the Minister”) issued an amendment (“Amended Regulations”) to the Regulations that were issued by the Minister on 25 March 2020 (“Regulations”).

In terms of the Amended Regulations, travelling of essential service workers, which includes legal practitioners, across provincial borders was authorised provided the person so travelling had obtained the required permit or, in exceptional circumstances, complied with certain specified conditions. The Amended Regulations did not have retrospective effect and so although judgement in the Moroka Municipality case was given after the Amended Regulations had come into effect, the Regulations of 25 March 2020 were still relevant to the conduct of the legal practitioners on 31 March 2020 and had to be applied by Judge Bauckmann.

In terms of the Regulations:

  1. All persons are confined to his/her places of residence, unless strictly for the purpose of performing an essential service, obtaining an essential service or goods, collecting a social grant or seeking an emergency life-saving or chronic medical attention.

  2. Movement between Provinces and between Metropolitan and District areas are prohibited.

  3. Contravention of the Regulations is a criminal offence and if convicted, the perpetrator would be liable to a fine or imprisonment or both.

The services of legal practitioners and the courts have been declared an “essential service” and so a legal practitioner is authorised to travel from their homes to court in order to attend urgent and essential matters provided they comply with the relevant requirements.

The Minister of Justice and Correctional Services (“Justice Minister”) issued directives which regulate the legal profession and their appearance in courts during the National Lockdown (“Directives”) and these must be read with the Regulations.

In terms of the Directives:

  1. If a legal practitioner is required to perform an essential service, he/she must be duly designated in writing by the head of the institution in the prescribed form.

  2. The head of the institution is defined in the Directives as the Provincial Legal Council or her/his delegated authority as the case may be.

  3. Enforcement officers must allow judges, magistrates, legal practitioners and sheriffs to commute between their place of residence and the court but only within their area of jurisdiction and only for purposes of performing essential services. Such persons are required to provide proof of appointment to such office.

  4. As proof of appointment to office, legal practitioners must present their admission certificate unless the Director of the relevant Provincial Legal Practice Council certifies in the permit that is issued for the practitioner, that such practitioner is a practicing legal practitioner.

  5. A Permit will only be issued by the Director of a Legal Practice Council if the legal practitioner:
    - is a practising legal practitioner; and
    - must appear in a case identified as urgent and essential services in terms of the Regulations.

  6. The Legal practitioner can only use the permit if he/she has proof of identification, which includes confirmation by the relevant director signing the certificate that the practitioner is on the council’s list of practising legal practitioners. If any of these documents are missing, the Legal Practitioner will be required to return to his/her residence.

Subsequent to the hearing of the Moroka Municipality case, Justice Minister did amend the Directives which amendment included an exception to obtaining the permit for legal practitioners. However such exception is only to be used in exceptional circumstances and not before the Director of the Legal Practice Council has been approached for the permit.

The exception provided for in the amended directives is that if a practitioner is unable to secure a permit from the Director of the Legal Practice Council, he/she may travel to a court if he/she has in his/her possession and presents:

  1. an original copy of the practitioner’s admission certificate;

  2. proof of identification; and

  3. confirmation from the register or clerk of the relevant court that the matter is on the court roll for that particular day, that the practitioner is on record as the official legal representative in the particular matter and that the matter is urgent or essential.

As the amendment was only affected after the hearing of the matter had been concluded, the amendment was not applied by Judge Brauckmann in his judgment.

Whilst the Directives do provide for permits allowing legal practitioners to travel within their jurisdiction for urgent or essential services, the travel restrictions imposed by the Regulations were still applicable and so legal practitioners could not travel across provincial borders, or between metropolitans and district areas.

A failure by a legal practitioner to comply with the Regulations and Directives will expose the legal practitioner to possible criminal prosecution, and investigation by the Legal Practice Council into professional misconduct.

As mentioned above, Judge Brauckmann called for proof from each of the legal practitioners appearing in the Middleburg Court on 31 March that they had complied with the Regulations and the Directives. Out of all the legal practitioners, only 1 of the them was in possession of the required permission and had not breached any of the Regulations or directives.

Of the remaining legal practitioners, all of them had breached the travel restrictions imposed by the Regulations in that they had travelled from outside of the jurisdiction of the Middleburg Court or had failed to obtain valid permits allowing them to travel to court. Some of the Legal Practitioners travelled from Johannesburg and Pretoria and therefore ignored the Regulations which imposed restrictions on travel to another province.

Two of the legal practitioners did not present permits at the hearing and were given an opportunity to do so after the hearing on the understanding that the permits had been issued but were not with the legal practitioners at court.

The permits that were eventually presented by these legal practitioners were dated after the date of the hearing. Accordingly, these legal practitioners did not have the required permission to attend the hearing on 31 March 2020. The permits presented by the legal practitioners on the day of the hearing were found by Judge Brauckmann to be invalid, save for one as mentioned above. The permits did not comply with the Regulations and/or the Directives in the following respects:

  1. 2 of the permits presented had been signed by someone allegedly from the Director General’s office and not the Director of the relevant Legal Practice Council as required. These practitioners also failed to provide the required identification.

  2. 1 of the permits, although signed by the Director of the relevant Legal Practice Council, authorised the legal practitioner to travel from Johannesburg to Mpumalanga. As such travel was against the law, the permit could not be deemed valid.

  3. 2 of the permits presented had been signed by the legal practitioners’ respective employers and not the Director of the relevant Legal Practice Council.

Judge Brauckmann found that the legal practitioners who had failed to comply with the Regulations and/or the Directives had possibly committed misconduct and a criminal offence. Accordingly, he ruled that no fees were to be charged by those legal practitioners for preparation, travel and attending the court hearing. Judge Brauckmann also ordered that their conduct be reported to the relevant Legal Practice Council and that the Registrar send a copy of the court order to the relevant Legal Practice Councils.