South Africa: New Directives in Regard to Litigating During Lockdown

Published on Apr 19, 2020

In order to provide guidance to litigators in navigating the national state of disaster, the Chief Justice has issued two sets of directives that apply to all courts across the country. The first was issued on 17 March 2020, and contained provisions restricting the number of people allowed in courts and implemented decontamination and social distancing protocols. The second was issued on 17 April 2020, and is to be read in conjunction with the initial directive. It provides, inter alia, for the following:

  • Only urgent matters arising from the activities associated with disaster management are to be heard in open court. However, the Judge or Magistrate ("Judicial Officer") may, if s/he deems it necessary, elect to hear the matter via electronic means, after consultation with the parties;
  • Where a matter becomes settled during the lockdown period, the Registrar or Clerk may be requested to place the matter before a Judicial Officer to grant an order;
  • Unopposed applications enrolled during the lockdown period shall be postponed, in circumstances where it is inappropriate to proceed via electronic means. In matters where the need for oral evidence can be disposed of, the Judicial Officer may deal with the matter on the papers (which will include written submissions from the parties as directed). Where an oral hearing is necessary, the hearing may take place via electronic means;
  • In the case of a rule nisi granted prior to the lockdown, with a return date during the lockdown period, the dates will be extended, unless is not possible, in which event a Judicial Officer will determine the future conduct of the matter;
  • The Judicial Officer on duty will determine how to deal with urgent applications.
  • Opposed applications:
    • Heads of argument are to be filed electronically (save for where a party is unrepresented and that party does not have access to email); and
    • Parties are encouraged to agree to dispense with oral argument, and must inform the Judge of their decision by noon on the Friday preceding the hearing date. Where parties are unable to agree to dispense with oral argument, the Judge may direct that the matter be heard by electronic means as directed by the Registrar.

Therefore, if an application is complex and deserves oral argument in court, parties are well advised to agree to remove the matter from the roll and wait for the matter to be heard in court, after the lockdown regulations are relaxed. This will particularly be the case where the matter is not urgent and the determination of the issues will have broader impact beyond just the parties in the application.

It is to be noted that the above provisions applied to the extended period of lockdown. It is therefore likely that the Office of the Chief Justice will release further directives to detail how to approach the courts in the various stages of the scaled-down restrictions in movement.

The office of the Judge President, Gauteng Division, issued a supplementary directive on 17 April 2020 in conformity with the directives of the Chief Justice. A revised supplementary directive was issued on 24 April 2020 and caters for the possibility of a long-term full lockdown or scaled-down restrictions in movement. These Gauteng directives apply during the period of the lockdown and until the end of Term 2 of 2020, including the first week of the July 2020 recess. The following additions in the supplementary and revised supplementary directives are, amongst others, to be noted:

  • Civil trials:
    • All documents are to be uploaded onto CaseLines. Failure to do so will result in the matter not being entertained;
    • All trials which were set down between 14 April to 30 April 2020, have been automatically removed from those rolls and re-enrolled for specified dates contained in the supplementary directive. All trials set down from 4 May 2020 until the end of Term 2 of 2020 shall remain enrolled. Trials enrolled in Pretoria during the recess of 30 March to 9 April 2020 and the week of 29 June to 3 July 2020, are automatically removed and are re-enrolled in accordance with the dates provided for in the revised supplementary directive;
    • Specialised procedures have been detailed for civil trials regarding the filing of practice notes, settled matters, matters which are ready for trial, matters which are not ripe for trial and matters which have been crowded out; and
    • If the parties agree to remove a matter from the roll, they must, at least five clear court days before the date of set down, formally remove the matter from the roll and email a copy of the notice of removal to the Civil Trials Registrar. A copy of the notice of removal must be emailed to the Civil Trials Registrar at CivilTrialremovalsPTA@judiciary.org.za for matters in Pretoria and at TKhumalo@judiciary.org.za for Johannesburg matters.
  • Opposed motions:
    • All opposed motions in the week of 14 -16 April 2020 have been automatically transferred to the week of 4 - 8 May 2020. Opposed motions on the roll from 4 May 2020 onwards shall remain enrolled;
    • The Judge allocated to hear the matter will, not later than five court days before the week in which the matter is set down, notify the parties that they will be adjudicating the matter and that all further communication must be emailed to an email address stipulated by that Judge;
    • In Johannesburg, requests for final enrolment as well as removals and enquiries related to Opposed Motions, must be sent to JHBOenrolment@judiciary.org.za. In Pretoria such requests and enquiries are to be sent to PTAOenrolment@judiciary.org.za.
    • Where the parties have not dispensed with the need for oral argument, the Judge may direct that either the applicant arranges for the setting up of a video conference as host, a physical hearing or any other procedure;
    • Any queries by a party must be made by email only and addressed to the Presiding Judge via the Judge’s Secretary with the other parties in copy; and
    • Where an applicant is unrepresented, the respondent shall assume the responsibility of dominus litis.
  • Special motions, third court motions and tax court matters:
    • Special motions and third court motions enrolled from 14 to 17 April 2020 are removed and re-allocated to alternative dates from 4 May 2020. The parties involved in these matters will be notified of the new dates. Special and third court motions will be heard in accordance with the provisions dealing with opposed motions in the supplementary directive; and
    • Matters on the tax court roll for this term will remain on the roll and will be handled in the manner as provided for opposed motions.
  • Unopposed motions:
    • The transfer of unopposed matters originally set down between 27 March and 16 April 2020 to between 28 April and 14 May 2020 remains in force;
    • Where a matter is not ripe for hearing due to re-allocations:
      • the parties may remove the matter from the roll by notice; or
      • the Judge seized of the matter may mero motu remove it from the roll.
    • In such a case, the matter may be re-enrolled, without any adverse costs consequences, on application to the Registrar. Such application must state the reason for the removal. This shall also apply to any other enquiries related to unopposed motions. In Johannesburg, queries and removals are to be emailed to JHBUEnrolment@judiciary.org.za and in Pretoria to PTAUEnrolment@judiciary.org.za. If a matter is not uploaded onto CaseLines because it is impossible to do so, the papers may be sent by email (with a satisfactory explanation) to the allocated Judge, failing which it will be removed from the roll with no order as to costs. The Judge will exercise a discretion whether or not to hear a matter not uploaded on CaseLines;
    • An applicant wanting to file written submissions, should upload the written submission together with a practice note onto CaseLines in a clearly distinguishable folder, alternatively the applicant may email the documents;
    • A respondent who, despite being late to do so, wishes to oppose the granting of an order, must communicate their opposition by email to the allocated Judge and to the applicant; and
    • A draft order (which includes Counsel’s email address and cell number) in Word format must be uploaded to CaseLines or transmitted by email.
  • Judicial case management conferences/meetings:
    • The revised supplementary directive revokes the automatic re-enrolment of these matters provided for in the Directive of 25 March 2020. Instead, new dates are set out in the revised supplementary directive, save for those matters in Johannesburg which were re-enrolled to 28, 29 and 30 April 2020.
    • In Pretoria, all matters enrolled from 22 April to 30 April 2020 have been removed from the roll and allocated alternative dates from 6 May 2020. Parties will be notified of the re-allocated dates. Matters that were enrolled for 20 and 21 April 2020, which were removed or could not be dealt with due to the absence of the parties or for any other reason attributable to the lockdown, will also be re-allocated to dates from 4 May 2020.
    • In Johannesburg, all judicial case management matters postponed to 28, 29 and 30 April will retain those dates and will be dealt with by the allocated Judges. In the event that any of these matters are removed for any reason related to the lockdown, the parties are to request a new enrolment date from the Registrar.
  • Urgent court:
    • An affidavit filed in support of an urgent application must contain the following statement:
    • “I …………………………………hereby certify that this matter is of such urgency that it must be heard during the period of Lockdown, or during a period during which restrictions are in place relating to the free movement of persons owing to measures to combat the COVID-19 infection pandemic.”
    • Where an applicant wanting to launch an urgent application proposes to serve papers at a time before the week in which they propose to set the matter down for a hearing, they must by email to the Secretary of the Senior Urgent Court Judge, request that a case number be assigned;
    • Such an email request must clearly state the names of the parties and of all the legal representatives that are known at the time of the request, and both the request and the reply must be attached to the papers filed; and
    • The Secretary of the Senior Urgent Court Judge who issues the case number will copy such information to the Registrar responsible for applications.
  • Etiquette in video conference hearing:
    • The Judge and persons appearing in video hearings must wear formal attire or be robed;
    • Participants are to ensure that there is no ambient noise in the room which can interfere with the audio quality during the hearing;
    • Subject to any ad hoc directives given by the presiding Judge, participants ought to mute their microphones when they are not speaking;
    • The Judge will invite participants to speak and everyone shall be alerted to the Judge’s directions in this regard;
    • Participants are to remain in the hearing and leave it only when the proceedings have concluded;
    • The Judge shall give instructions as to the recording of proceedings and where a party is responsible for the recording, an audio file must immediately, at the close of the proceedings be sent to the Judge at a stipulated email address for retention by the Judge until such time as the Registrar can take custody thereof; and
    • If the Judge, Judge’s Secretary or a Stenographer records the proceedings, the Judge shall retain the audio file, until such time as the Registrar can take custody thereof.
  • The revised supplementary directive also includes a warning that it is important to use the correct email address when complying with these directives. Incorrect and abusive use of email addresses will lead to the issue being raised in such email not being attended to and emails incorrectly addressed to the Judge President, regarding an issue covered in the supplementary and revised supplementary directives, will be ignored.

In respect of appeals to the Supreme Court of Appeal, a directive was issued on 24 April 2020 by the President of the Supreme Court of Appeal confirming that for the month of May, no physical hearings will take place and that instead, remote hearings will be facilitated. Where a party believes that a physical hearing is necessary, they may make submissions to the Registrar detailing why this is the case, after which the presiding Judge will issue a directive. Such directive may include the adjournment of the matter sine die.

Aslam Moosajee

Dispute Resolution | Director

+27 82 461 5917

amoosajee@ENSafrica.com

Vishana Makan

Dispute Resolution | Associate

+27 66 493 2372

vmakan@ENSafrica.com