Judicial Leadership in the Time of Covid-19

Opinion piece first published on JudgesMatter.co.za on 24 March 2020.

The role of judicial leadership during the COVID-19 pandemic will be critical. We don’t have a single judiciary, or at least not yet – and the different parts of the South African justice system are responding differently.

Lead Taken by Gauteng High Court

The lead was taken on Monday (16 March 2020) by Dunstan Mlambo; the Judge President of Gauteng, which is one of South Africa’s busiest courts. That directive really aimed to get people to limit their activities at court for four weeks. Only already enrolled matters were to be heard, and practitioners were asked not to issue new papers in court cases, except online using the new electronic case management system, Caselines, and in cases of urgency.  Matters would be postponed, and no members of the public would be allowed to sit in on cases being heard.

Chief Justice Mogoeng's Direction

This approach was briskly reversed by the Chief Justice and heads of court in a press conference on Tuesday (17 March 2020), in which the Chief Justice essentially announced that the justice system would carry on, with a number of measures to ensure hygiene and social distancing.

He also advised that prayer in groups of 70 would be a good idea. Members of the public would essentially be allowed in court, and there would be no closures of courts.

Confusion Reigns

On the same day, the Western Cape High Court announced their approach, which was to limit people entering the courts, including no members of the public allowed to sit in on cases being heard. Matters would be postponed, and limited processing of paperwork allowed. This would not be consistent with the approach of the Chief Justice.

The Gauteng High Court reversed itself on Wednesday, to align itself with the Chief Justice’s approach. The directives now say that practitioners are entitled to carry on as normal, but they are strongly urged to avoid the courts as much as possible.

The level of discord is made clear by section 7 of the amended Gauteng directive which says “All other directives in that Directive [the first directive from Gauteng] should be treated as OPTIONAL.”

On Friday the 20th March the Provincial Efficiency Enhancement Committee, which is a meeting of judges, magistrates and other stakeholders, met to set new guidelines.  If you have a criminal trial enrolled in Gauteng in the High Court, Regional Court or District Court in the period 23 March to 9 April, it will be postponed, preferably by video link to after the 14th April. No awaiting trial detainee will come to court.  If an accused has a bail hearing or first criminal matter appearance in Gauteng in the period 23 March to 9 April in the Regional Court or District Court, it will go ahead. If you have a civil trial enrolled in Gauteng in the High Court, Regional Court or District Court, it will preferably be postponed.

But What About the Magistrates Courts?

Magistrates courts are required to follow the direction of the Chief Justice, and some have used the ‘carry on’ principle, with a number of measures to ensure hygiene, and social distancing. The Regional Court President for Limpopo has directed process to be sent to the court by email.  Others have regarded the Chief Justice’s directives as being for the High Court only. The CCMA has closed more or less entirely.

The Cape Town Magistrates Court has also issued directives which are more restrictive than those of the Chief Justice.

See Magistrates directive here: Magistrates Courts directive – COVID19

A Look at the Rest of the World

Other jurisdictions have taken different approaches which echo ours in their range. In Saudi Arabia, all courts are now closed, an option simply not open to us under the Constitution even in the case of an emergency. (COVID-19 is a disaster, not an emergency – it means you can’t limit rights in the same way as you could if there was an emergency.)

In the UK, they require people to self-isolate and avoid the court if they have the virus or suspect they have the virus. Extra attention is given to hygiene. Commentators suggest this is collapsing under people simply self-isolating and not attending court.

In Lahore in Pakistan, people who have the virus, and people who suspect they have the virus stay away from court. Those who do not represent litigants or are not officers of the court or court staff are not allowed to attend court, but trials and civil proceedings continue. This violates the principle of open courts but does limit contact in order to prevent the spread of the virus.

Other jurisdictions such as some states in Canada have taken a nuanced approach, where court matters are postponed where they are less urgent but carry on where the rights of the vulnerable e.g. children, or prisoners are concerned.  So, court continues for cases that a delay would compromise, such as where an awaiting trial prisoner is in jail or where a juvenile is involved. Some civil matters are postponed, and some activities that bring people to courts like weddings are postponed. Minor matters such a traffic offences are postponed.

An Unprecedented Problem

The Chief Justice and heads of court have an unprecedented problem facing them, and one thing lawyers don’t like is a lack of precedent. The tension between keeping the essential rights of access to justice operational, while protecting the people in the courts, is a challenge. As Ponan JA has pointed out:

“The idea that South African civil courts should be open to the public goes back to 1813. The principle of open courtrooms isAnchor now constitutionally entrenched. ‘Publicity’, said the philosopher Jeremy Bentham, ‘is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbability. It keeps the judge himself, while trying, under trial.’ The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much asAnchor to other branches of government.”

The Need for Strong Leadership

As the disaster unfolds, the authorities will have to weigh in again on these questions as events unfold in the next days and weeks.  The underlying question highlighted in the last week’s events as to who controls the courts may well have to wait for another day.