Attorneys 'in Catch 22' over regulations
Three lawyer groups are taking on the Minister of Justice & Correctional Services in an urgent Western Cape High Court action to sort out the confusion plaguing the profession regarding the regulations governing the movement of attorneys during the lockdown.
The Cape Town Attorneys Association, Tygerberg Attorneys Association and the Coastal and Winelands Attorneys Association are seeking a declaration that ‘legal practitioners are entitled to obtain a permit authorising the performance by them of essential legal services as contemplated in paragraph B.16 of Annexure B to the Regulations promulgated by the first respondent in Government Gazette No 398 on 25 March 2020, in the manner contemplated in paragraphs 11B (2) and (3), read with form 1 to Annexure C, of the regulations’.
In a founding affidavit, Cape Town Attorneys Association chairperson, Clive Hendricks, noting two sets of regulations have been issued (25 and 31 March), says there are effectively two regimes for issuing attorneys essential service permits in play – and ‘they are different in a number of material respects’, which he outlines in the affidavit.
However, in setting out ‘the principal difficulty’, Hendricks notes the 31 March 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 points out: ‘lt 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.’
This, he suggests, is effectively ‘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.’
He claims no other sector rendering an essential service is faced with the restrictions imposed on lawyers, and he argues that the Justice Minister ‘acted in a manner not rationally connected to the purpose for which it was taken, or the purpose of the empowering provision, being the 18 March regulations'.
It was irrational to prescribe a regime for the issuing of permits to legal practitioners when this had already been done. The case is expected to be heard this week
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