Litigation in times of Lockdown

Authors: Keshia Manolios, and Loatile Baiphaphele

Services: Litigation & Dispute Resolution

This article summarises the practice directives issued before and after the National Lockdown and are a guide as to how litigants should manage litigation matters during the lockdown.

The announcement of the National Lockdown by President Cyril Ramaphosa on 23 March 2020, in an attempt to contain the spread of COVID-19, had many South African businesses scrambling to amend their standard practices so as to limit the effect of the National Lockdown as far as possible.

The South African judiciary was no exception. Since President Ramaphosa declared a national state of disaster, Judge President Dunstan Mlambo issued various directives for the courts in order to comply with the regulations that have been promulgated whilst at the same time, balancing people’s access to justice as far as possible.

Before the Lockdown

Even before South Africa had been exposed to COVID-19, Judge President Mlambo issued a practice directive which introduced an online system called CaseLines Digital Litigation System (“CaseLines”). The purpose of CaseLines is to move litigation towards being conducted digitally as opposed to the traditional approach of managing litigation through the use of physical hardcopies of documents.

On 15 March 2020 President Ramaphosa declared a national state of disaster and announced certain measures in an attempt to contain the spread of COVID-19. These measures included a ban on mass gatherings of more than 100 people and that where small gatherings were unavoidable, the organisers would need to put stringent measures of prevention and control in place.

In response to the President’s announcement, Judge President Mlambo issued urgent court practice directives which implemented prevention and control measures for the courts. These included the following:

  1. Only persons with a material interest in a case such a litigants, witnesses, accused persons and those persons who needed to provide support such as those accompanying children, victims of domestic violence and/or sexual abuse, elderly, people with disabilities, family members, representatives of special interest or support groups and members of the media were permitted to enter the court precinct.

  2. All persons seated in a court room for a matter were required to maintain a 1-meter space between them.

  3. No practitioner, messenger, member of the public could enter the court building for purposes of issuing new process save for matters that were prescribing or were urgent.

  4. The parties wanting to issue new processes for matters that were not prescribing or urgent were to email the relevant documents to the Registrar who would then issue the papers and register the case on CaseLines.

  5. Practitioners involved in matters that had already been initiated by way of a paper file and not on CaseLines, were to email the Registrar for directions on filing further papers.

  6. Matters could be enrolled for hearing only via CaseLines.

  7. During the period 17 March to 14 April 2020, Judges and staff would only handle matters that were already enrolled for hearing, unless the parties agreed to postpone such cases (including unopposed matters) in which event the relevant Judge’s Secretary was to be notified and the parties would be entitled to approach the Judge President for an expedited date for a new hearing.

  8. The practitioners involved in matters that were already registered on CaseLines were to contact the Registrar’s office by email for directions for the serving and filing of all further documents.

After the Lockdown

Following the announcement of the National Lockdown, Judge President Mlambo issued an urgent court practice directive titled “Special arrangements to address COVID-19 Implications for all litigation in the Pretoria And Johannesburg High Courts”.

The Directive came into effect on midnight on 26 March 2020 and amended a number of the preventative and control measures that had already been implemented by Judge President Mlambo.

The directive is, at the time of publishing this article, still in place and provides as follows:

  1. During the National Lockdown, the only court that will be open to hear matters is the Urgent Court.

  2. Urgent matters shall operate as follows:
    - Hearings will be conducted via teleconferencing/videoconferencing and/or any other electronic means. Where this is not possible, the Judge hearing the matter may direct that the parties may appear physically.
    - The Urgent Court shall operate in the same manner in which urgent applications are dealt with after court hours and as provided for in the Practice Manuals. During the National Lockdown the contact numbers for the Urgent Court are 065 859 4819 for Pretoria and 081 727 7734 / 082 573 5233 for Johannesburg.
    - Service of processes in all urgent matters must comply with the rules of court but the representatives of all the parties are encouraged to agree on a variation of the rules that will facilitate a wholly electronic exchange of papers.
    - The papers are to be uploaded on CaseLines and if this is not possible, the papers must be emailed to the email address allocated by the Urgent Court Judge. Only if access to CaseLines and email is impossible to achieve can papers be delivered physically but the papers must be accompanied by an affidavit explaining in full why it was not possible to transmit papers via CaseLine or email.
    - Orders granted or issued for an urgent matter will be communicated by email to the parties or uploaded on CaseLines.
    - The counsel or attorney that is to appear in the matter must sign a certificate certifying that the matter is urgent and must be heard before 21 April 2020.

  3. If, at the discretion of the Judge hearing the urgent matter, it is found that the matter was not urgent enough to warrant a hearing during the National Lockdown, a punitive costs order can be granted and the counsel and attorney may be interdicted from receiving fees for the work relating to the matter.

  4. All matters that were enrolled for hearing between 27 March and 17 April 2020 have been removed from the court roll and are to be re-enrolled by the parties after the National Lockdown. In so far as unopposed matters are concerned, these will be automatically re-enrolled by the court on dates specified in the directive.

  5. All matters that are enrolled for hearing after the National Lockdown will proceed to be heard on the allocated dates with the exception that parties may postpone a matter if the preparation to achieve readiness for the hearing was materially affected by the National Lockdown. If a matter is postponed for such reasons, there shall be no orders in respect of such postponements.

  6. In so far as divorce matters are concerned, those matters that were enrolled for hearing during the National Lockdown period have been removed ad will be automatically re-enrolled for hearing on 24 April 2020. Extra divorce courts shall be convened to deal with these matters.

  7. Any applications with Rules Nisi returnable dates during the National Lockdown period must be brought to the attention of the Judge on urgent duty in order that he/she may extend the Rule Nisi to beyond the National Lockdown period.

  8. Matters deemed to be prescribing during the National Lockdown Period may be brought to the courts’ attention via email. The date of transmission of the email shall be regarded as the date of issuing of the process.

Special supplementary directives for dies non

On 2 April 2020 Judge President Mlambo issued a supplementary court practice directive to address the issue of dies non during the National Lockdown. Dies non is the time period during which the filing of certain court documents is suspended.

In the supplementary directive, it is confirmed that the National Lockdown period has not been declared to be dies non. Accordingly, all litigants are to make use of the CaseLines platform or allocated email addresses to serve and file documents required to be served and filed during the National Lockdown period.

For more information COVID-19 issues impacting business, you can read our Coronavirus: resource hub.