An attorney has written to the Chief Justice and Minister of Justice, raising ‘concern about the confusion that has arisen from a failure to provide consistent directives from the CJ’s Office and the Department of Justice’, concerning directives on the operation of the courts.

Attorney Tracey Lomax, writing on behalf of several colleagues and law firms, also warns that they may resort to legal action to get clarity if the matter is not addressed.

In the letter, Lomax says: ‘We understand that the Office of the Chief Justice has delegated the authority for directives to the various Heads of Court. However, instead of providing much-needed certainty, these directives have been varied and inconsistent and in some cases impractical, especially in relation to Magistrate’s Court matters’, where ‘for example, some courts require attendance while others do not, and we find ourselves, as legal practitioners, unable to advise our clients with meaningful accuracy’.

The lawyers claim the communication from the Ministry of Justice is equally perplexing, ‘because the regulations issued on 26 March stipulated that dies non applies, but the amended regulations (31 March 2020) are silent on the issue of dies non’.

Lomax adds: ‘Consequently, much is – and will be – left up to the courts to determine. Not only is this impractical, because different courts may apply different solutions to similar facts, but condonation applications may then dominate the courts post-lockdown. This will serve to increase the burden on an already over-burdened court roll. In addition, costs will increase at a time when clients will have already faced financial stress due to the lockdown.’

The letter warns that ‘any failure to address the concerns raised … will inevitably force an application for a declaratory order’ to seek clarity on the issues. The lawyers propose an amended directive which addresses that:

* Dies non applies for as long as the national lockdown is in place.

* Prescription be deemed interrupted for as long as the lockdown, or any subsequent lockdown is in place.

* No process, notice or further step may be pursued by any party, in any matter, for the duration of lockdown, unless by agreement between the parties.

The Lomax letter

The issues have also raised tension between CJ Mogoeng Mogoeng and Justice Minister Ronald Lamola.

In a letter to the Minister, Mogoeng says heads of courts ‘suspect’ that Lamola may have acted unconstitutionally in how he went about consulting the judiciary on draft directions for the partial closure of courts.

According to Mail & Guardian legal writer Franny Rabkin, it appears that Lamola – in seeking to respond to the Covid-19 pandemic – sought to consult the judiciary about the best way courts should operate during the lockdown.

But in the letter, dated 26 March, Mogoeng questions whether the government is authorised by the Constitution to regulate the closure of courts, and then consult the judiciary about it – or, as he puts it, ‘to remove the specific constitutional and statutory powers vested in another arm of state, giving them to the executive and then seeking to consult the bearers of those constitutional and statutory powers’ on how to exercise them.

In his letter, Mogoeng also questioned whether the ‘current regime’ under the Disaster Management Act gave the executive ‘more extensive and restrictive powers’ then what is provided for during a state of emergency under the Constitution. But he added that the judiciary appreciated that ‘these challenges arise within the context of the executive trying to do the best they can to secure the well-being of us all, under extremely trying circumstances’.

Directions for the partial closure of courts were gazetted on 26 March and amended this week, with new directions published on Wednesday. Under both sets, courts remain open for certain types of cases – including urgent cases and cases relating to the Covid-19 shutdown, notes the M&G report.

In declining to be consulted by the Minister, Mogoeng said that ‘because of the tentative view that we hold, it would be inappropriate to agree to be consulted on a process whose constitutionality is suspect’.

‘We think it might compromise and possibly embarrass us to express a view on and be party to a possible unconstitutionality. I therefore distance the judiciary from this consultative act, hoping that you will appreciate our predicament,’ he added.

Full Mail & Guardian report