A South African judge has strongly criticised a group of lawyers who appeared in an urgent case that, among other things, dealt with access to water by residents of a municipality affected by a political dispute. The judge said that the lawyers were irresponsible and unprofessional because they had not obtained the permits required to attend a court case under COVID-19 lockdown regulations. The court further ordered that the lawyers were not allowed to charge their fees for the day, and that the question of their lack of proper permits should be reported to the Legal Practice Council.
The judge began this decision with a reminder of another decision related to COVID-19, given just days before. In that earlier case, an attorney had asked for urgent help from the court: he needed permission to travel from one South African province to another, to assist his aging mother after his grandfather had died that morning in a fire. He wanted to go to her home to support her and the rest of the family and to attend the funeral.
That court said the attorney was asking the impossible: ‘I would be authorising the applicant to break the law under a judicial decree – that no could can do.’
Since then, maybe taking notice of what the court had said about the ‘tragic’ nature of this case, and realizing that other people could find themselves in a similar situation – needing urgently to cross provincial borders for funerals – the government has issued new COVID-19 regulations that would allow these boundaries to be crossed, though only under extremely strict conditions.
Ironically enough, this second case also deals with legal practitioners. They are involved as representatives in a dispute related to a municipal council.
But when they appeared in court for their clients, they broke the regulations by not having a valid, official permit to be there.
Of the 10 legal representatives involved, only one could provide valid and correct documentation.
The judge had raised concern about whether the lawyers involved had permits that complied. ‘Although I was assured by counsel that (the permits) did comply, I could establish by merely glancing at the “permits’, that there was non-compliance by all but one of the legal practitioners in court.’
Despite the court’s concern about the validity of the permits, the judge allowed the case to go ahead. The judge later explained that the court regarded the application as ‘extremely urgent’ and did not want residents of the municipality concerned ‘to suffer one further day’ because of the dispute and related litigation that ‘caused basic services to be severely disrupted’.
The court noted the impact of the pandemic and the intention of the regulations: ‘to keep SA citizens at home and safe for at least 21 days in order to prevent the uncontrolled spread of the viral infection.’
If this call were not heeded, the pandemic could reach the proportions seen in other parts of the world and SA’s health system would not be able to cope. The thinking behind the regulations ‘made perfect sense’, the judge said.
There was no ‘blanket authorisation’ for practitioners ‘to travel and render services in the normal course’ as though it were business as usual, without first trying to get a permit from the director of the Legal Practice Council.
‘At risk of repeating, it is clear that the regulation, read with the directives’ main purpose is to restrict the movements of persons. More so by prohibiting the unnecessary movement of people between the provinces and metropolitan and district areas. Not even a foreign language interpreter may cross provincial borders even if his/her service is needed during the lockdown.’ Under the now amended regulations, ‘practitioners were also only allowed to travel to court within their jurisdictions.’
The practitioners who appeared in court for this case, said the judge, ‘paid no attention to’ or ignored, the regulations.
Dealing with the advocates among the group of practitioners – one of them is a Senior Counsel who has been an acting judge – the judge said that counsel were supposed to ‘uphold the highest standards of integrity, accountability and diligence in carrying out all their professional responsibilities.’ They also had ‘fiduciary duties to the courts.’
Lawyers, ‘as members of an honourable profession that interprets and applies the laws, must set an example to other citizens, and dare not flout it. They must be seen to adhere to the law. Any breach of the law and regulations in an open fashion will cause the general public to lose faith in the legal profession and system.’
The advocate and other legal practitioners in the matter ‘not only acted recklessly by travelling across the border in breach of the regulations’ but they also ‘openly defied the regulations and directives’. This ‘amounts to contemptuous conduct and the court cannot be seen to approve it.’
Senior members of the legal teams involved should have made sure that their travel documentation complied with the strict requirements of the regulations and directives. Those who had documents signed by the ‘Director-General – support’ had not complied because the signature was supposed to be that of the ‘Director-General’.
The judge said under other circumstances the court should not have considered the matter because of the permit problem, and should have told all the practitioners to go home until the lockdown was over. However, ‘I could not do so as it was apparent that the resident of the … municipality, because of the first respondent’s conduct, did not have access to potable water.’
‘One could expect legal practitioners to study the relevant provisions regulating their conduct under the current exceptional circumstances before proceeding to court.
‘The trying times that we live in affect everyone, and although one is sympathetic to the inconvenience that is being experienced by, amongst others, legal practitioners, the regulations and directives are there for the good of everyone.’
In conclusion the judge ordered that the advocates and attorneys involved in the case may not charge any fees or expenses related to preparation, travel to and from court, and appearing in court for the hearing on 31 March.
Two further legal practitioners involved have been given a deadline to produce their permits for the day, failing which they will be similarly punished.
Finally, the judge ordered that a copy of the decision was to be sent to the directors of the legal practice councils of the two provinces involved.
At least one of the group has already decided to appeal the decision, saying he passed through road blocks on the way to court and that the police accepted his 'permit' as valid. He said his name was smeared and he will fight all the way to the highest court if necessary to have the judge's initial decision overturned.
- In his blog on the case, UCT law professor and constitutional commentator, Pierre de Vos, questions whether the court was correct in apparently agreeing that the threat presented by the virus ‘justifies the regulations and directives’. ‘In my view,’ writes De Vos, ‘this sweeping endorsement of the constitutionality of the regulations (albeit obiter) goes too far. While few people will argue with the view that regulations to slow and/or suppress the spread of Covid-19 are necessary, it may well be that specific regulations are not constitutionally compliant.’ Apart from that, however, on the broader question of the court’s criticism of the individual legal practitioners involved, De Vos said he was in agreement with the remarks of the judge. He added, ‘Hopefully the judgment will serve as a warning to other lawyers who believe they can take short cuts for no other reason (than) that they are lawyers.’