UPDATE: How SA courts will operate during lockdown level 4
This feature contains the regulations applicable as per province.
Physical court appearances will be replaced by technological alternatives and bail hearings of those accused of less serious crimes must be finalised. These are two ways in which the Department of Justice’s most recent regulations aim to limit the spread of Covid-19.
The Minister of Justice, Ronald Ozzy Lamola, issued the new directions on May 3.
In terms of these directions, the directions set out on March 25** have been withdrawn. However, all actions, investigations, prosecutions or legal proceedings arising from the period when these directions were in force, will remain valid.
This article elaborates on key determinations made.
- Restriction of services and access to a courtroom, courthouse or justice service point
Persons with material interest in any case will be allowed to enter court. The same applies for the entry of justice service points (centres and offices of the Masters of the High Court and Family Advocate). Examples include litigants, witnesses, accused persons and members of the media. This is subject to a magistrate or judge limiting access for, for example, ensuring that social distancing is practised.
If you have been in contact with a Covid-19 infected person in the last two weeks, do not go into a courtroom or justice centre. The same applies if you tested positive.
- Postponement of criminal cases and related matters
Where possible, audiovisual links (such as closed-circuit television) must be used to postpone cases of accused persons in custody. Audiovisual links may also be used for unopposed bail applications if the charges in question are listed in schedules 1, 5 or 6 of the Criminal Procedure Act.
Where no audiovisual link is installed between the court and a correctional centre where accused persons are in custody, teleconference, videoconferences or other electronic modes of establishing audiovisual links may be used for case postponements.
- Criminal cases and children
According to the directives, criminal trials enrolled during Alert Level 4 must be postponed. Where special arrangements have been made with the judicial officer hearing the matter, a case does not have to be postponed. Children who are detained must appear in court, where the court will decide whether these minors need to stay behind bars pending trial.
- Criminal Trials
The directions require that trials of trial-awaiting incarcerated persons must be prioritised. Those who have been arrested for petty offences must be released and warned to appear in court on a future date. Directors of Public Prosecutions must expedite the fixing of bail for, and release of, accused facing schedule 7 charges on bail.
A prerequisite for such release is authorisation from the attorney-general and consultation with the relevant investigating officer.
- Civil Cases
Small Claims Courts may not operate under Alert Level 4 and services relating to these courts are limited to email and telephonic enquiries.
Civil cases that are not identified as urgent or permitted services in terms of department’s directions may not be placed on the court roll during Alert Level 4.
That being said, magistrates and judges may authorise the hearing of all cases on a court role where teleconference, videoconference or any other electronic mode is used and physical presence in a courtroom is therefore not necessary.
Each court’s clerk or registrar must inform parties of new court dates in writing.
- Services by sheriffs
Sheriffs may only deliver processes, execution of writs and warrants in cases which are urgent or permitted services, such as:
– service and execution of court orders relating to Covid-19;
– service of domestic violence protection orders;
– service of protection from harassment orders;
– service of urgent court process relating to court hearings scheduled during Alert Level 4;
– service of urgent court processes in family law matters as determined in these Directions; and
– service of any other process in respect of permitted services.
– The execution of warrants of execution, including evictions and all attachment and removal of property are suspended under Alert Level 4, subject to the provisions of relevant regulations.
The execution of warrants of execution, including evictions and all attachment and removal of property remain suspended under Alert Level 4.
- Foreign language interpreters
In cases where, for example, an accused does not understand or speak any South African language, foreign language interpreters are sourced to translate court proceedings for the accused. The regulations require that interpreters must be sourced firstly from the province where the case is heard. If that is not possible, interpreters from other provinces may conduct their duties using audiovisual equipment.
- Legal Aid
South Africans who earn less than R7400 per month after taxes, or members of a household with a collective earning below R8 000, may get free legal representation from Legal Aid South Africa. Legal Aid may only render permitted services.
- Resolution of disputes
Parties to any legal dispute may resolve their differences through mediation or arbitration as court rules prescribe.
- Traveling to court
Those involved in court proceedings may travel within their provinces to perform permitted services as long as they have a letter of employment or another court document to explain why they need to travel. They must also be able to identify themselves. South Africans who work for law firms must have proof of employment setting out why and where they are travelling. Those who need to obtain relevant documentation from the court should contact the courts to determine where and how this can be done.
- Safety measures at courts, courthouses and justice service points during the period of the state of national disaster
Courts will require attendees to wear cloths or face masks covering their mouths and noses. These institutions will ensure that adequate hand sanitiser and soap is available and social distancing will be implemented.
- Exclusion
Judicial officials may order the deviation from the latest directions if necessary.
** This report was updated on May 6, 2020. On March 25, 2020, Caxton Local Media reported:
Directives setting out how South Africa’s courts will function during lockdown were published in the last 24 hours.
As each province has its own directives, Caxton Local Media has made PDF versions available for six of the nine provinces and will update this report with directives for the Northern Cape, North West and Free State when it becomes available. Readers are able to download provincial regulations by clicking on the relevant PDFs at the bottom of this update.
The directives were contemplated on March 25, when the Ministry of Justice and Correctional Services indicated that it would have to curtail the number of persons in courtrooms, court precincts and service points.
The authority to issue directives was issued to heads of High Courts, Regional Courts and Magistrate’s Courts, countrywide.
“Our courts, court precincts and justice service points (centres and offices of the Masters of the High Court and Family Advocate) will be open, albeit with limited capacity, therefore the public can rest assured that the administration of justice will not be compromised during the lockdown period. All users of the courts and justice service points must know that their safety is paramount and we are taking the necessary precautionary measures to prevent and minimize the spread of the virus,” said Minister Lamola in a press release issued last night (March 26).
Ministerial spokesman, Chrispin Phiri, explained the essence of these regulations.
“The directions restrict access to court precincts and all justice service points.” The number of persons entering these areas will be limited according to social distancing. Therefore entry into courts and court precincts will only be allowed in respect of urgent and essential matters.
Who may go to court?
Only persons with material interest in a case. This, Phiri said, includes litigants, accused, witnesses and those who may be needed to provide support such as those accompanying children, victims of domestic violence or sexual abuse and persons with disabilities, family members, and members of the media. However, some persons may be ordered to leave a courtroom to comply with safety measures and social distancing requirements.
Who may not go to court?
Persons who have been in contact with or exposed to people from high-risk countries, as well as persons who have been in contact with or exposed to those who have tested positive for Covid-19 will not be allowed to enter a court precinct or justice service point during the lockdown.
What happens to accused in custody?
According to Phiri, audio-visual remand centres in correctional centres linked to Magistrate’s Courts will be used to postpone their cases.
What happens to suspects and accused awaiting trial in correctional centres or police holding cells?
“They will not be brought to any court or court precinct, unless for first appearances, bail applications and matters where special arrangements have been made with the judicial officers involved in the matters,” Phiri explained.
What happens to criminal trials enrolled during the lockdown?
According to Phiri, these cases will be postponed to dates after this period, except for trials in which the interests of justice dictate otherwise, or where special arrangements have been made with the judicial officers involved.
What will happen to civil cases?
“Cases that are not identified as urgent and essential shall not be placed on the court roll for the duration of the period of lockdown,” said Phiri. He added that heads of court have the discretion to authorise the hearing of matters through teleconference or videoconference.
Will the sheriff still be serving legal documents?
The service of process and execution of writs by sheriffs are limited to cases which are urgent and essential.
What about eviction procedures and attachment orders?
All evictions and execution of attachment orders, both movable and immovable, including the removal of movable assets and sales in execution is suspended with immediate effect for the duration of the lockdown.
Will the Master’s Offices be open? Which services will be provided?
Yes. Services rendered will include payments to natural guardians, tutors and curators, or for and on behalf of minors and persons under curatorship as well as the processing of documentation required for the burial of a deceased person and the urgent appointment of curators.
Which measures will courts and judicial service points take to limit the spread of the virus?
“Importantly, certain safety measures must be adhered to in addition to the safety measures that have been issued by the Minister of Health to minimise the spread of the virus. These measures include, amongst others, the deep cleaning and sanitizing of public spaces and the prominent display of dispensers of alcohol-based hand sanitiser in public areas,” said Phiri.
Readers from the provinces below may click on the relevant links for more.
More news you need to know here: Covid-19 (coronavirus): Six months in jail for anyone who publishes fake news
Dear reader,
As your local news provider, we have the duty of keeping you factually informed on Covid-19 developments. As you may have noticed, mis- and disinformation (also known as ‘fake news’) is circulating online. Caxton Local Media is determined to filter through the masses of information doing the rounds and to separate truth from untruth in order to keep you adequately informed. Local newsrooms follow a strict pre-publication fact-checking protocol. A national task team has been established to assist in bringing you credible news reports on Covid-19.
This publication previously published the following correction and apology:
Caxton Local Media websites, such as this one, recently published a report titled “How the courts will work during lockdown”.
The article was based on a draft document that was not accepted by the Department of Justice, nor was it published as a directive.
Chrispin Phiri, spokesman of the Department of Justice, indicated that the department is still finalising directives indicating how the courts will work during the lockdown period.
Caxton Local Media will publish relevant information as soon as it is made publicly available.
We apologise sincerely for the incorrect information previously published – both to the Department of Justice and those affected by it.
