Lawyers head to court to fight measures that make it hard for them to head to court

A group of Western Cape lawyers are headed to court over lockdown directions which they say make it near impossible to render certain essential legal service during this period.

Services related to the essential functioning of the courts have been deemed essential services during the national lockdown and, as a result, legal practitioners who are required for these services have been deemed essential services workers.

But the chairperson of the Cape Town Attorneys Association – Clive Sinclair Hendricks – said in papers filed in the Western Cape High Court on Monday that in terms of the directions published by Justice Minister Ronald Lamola late last month, lawyers could only obtain permits to travel during the lockdown if their cases had already been placed on the court roll.

“The principal difficulty which arises is that the directions do not take account of the fact that it is often necessary to undertake a considerable amount of work in relation to a matter before it is enrolled for hearing,” he said.

“It is necessary to consult with a client and witnesses, obtain documentary or photographic evidence, draft affidavits, have them printed, have them commissioned before a commissioner of oaths, make copies for service, counsel and the court, and travel to the court to have the papers issued. Only after this has been done can it be said that the matter is enrolled for hearing.”

He said that, further, first appearances were only enrolled on the day.

“Legal practitioners rendering essential services cannot obtain confirmation of enrolment before the matter is actually called,” Hendricks said. “What results is a ‘Catch-22’ situation. Even if a matter is pressingly urgent – and even if it has grave ramifications for a client – a legal practitioner cannot have it enrolled, which is necessary before he or she can be issued with a permit because one cannot do the work necessary to have it enrolled without being in possession of a permit.”

Hendricks also argued that Lamola’s directions “prescribe an additional, and considerably more restrictive, regime for the obtaining of essential services permits by legal practitioners” than that prescribed in the regulations published by Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma’s previously.

“There are now two laws which regulate the obtaining by legal practitioners of essential services permits, and they are different,” he said.

He said that in terms of the regulations, permits had to be issued by the head of an institution as defined “in a broad and elastic way, as it must be, because it is intended to cater for a wide range of situations”.

He said there was “no such flexibility” in Lamola’s directions, which stipulated that ‘head of institution’ meant the provincial director of the Legal Practice Council.

Hendricks also took issue with the directions requiring that a legal practitioner be in possession of either an admission certificate or a certified copy.

“The directions were issued after the lockdown commenced and – because many legal practitioners do not have their original certificates of admission with them at their place of residence, or if they do, cannot lawfully travel to have a certified copy made – it is impossible for them to comply,” he said.

The case is expected to be heard later this week.

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