Introduction to Prescribed Restricted Process with regard to Access to Justice
On the 31st March 2020 the President of Botswana declared a state of public emergency and a lockdown duly ensued as of the 2nd of April 2020. In response to the actions of the President, the Chief Justice issued Practice Directive No.2 of 2020 which was later revised on the 10th of April 2020. The key paragraph dealing with access to justice during lockdown is captured below from paragraph 2.1 of the said Directive:
“With effect from Friday 3rd April 2020, there shall be no court hearings except in relation to extremely urgent applications. The applications shall not be registered unless the duty Judge or Magistrate confirms the urgency of such a case and directs that it be registered. The purpose of this Directive is that where possible judicial officers and support staff, as well as stakeholders should be facilitated to remain at home to prevent the spreading of COVID-19.” (own emphasis by highlight and underline)
The phrase “extremely urgent” is quite foreign to our jurisdiction. Courts have long noted that there are degrees or extents of urgency – but the heights and lengths of degrees remained obscure to practitioners due to various caselaw directing that the extent of urgency will depend on the circumstances of each case.
In this reflection, I draw conclusions based on two select cases to which I was engaged during the lockdown period. One being from the Magistrates’ Court and the other from the High Court, although with particular emphasis on the High Court case done alongside my colleagues. Both proceedings were lodged on the premise of what was believed to be “extremely urgent” circumstances and were duly registered. Little did we appreciate, that registration only marked one milestone among many.
Practical challenges in lodging and preparing for hearings
After crossing the hurdle of “extreme urgency”, other challenges quickly came to the fore. Gathering evidence proved to be by far the most difficult process. The lifeblood of every Application is the evidence supporting the Affidavit and quite unfortunately, in Botswana the ‘best evidence rule’ still runs prevalent.
It proved so difficult to secure affidavits from one district to another that some attachments were copies of affidavits. A peculiar resource. Another peculiarity to process is that pre-arrangement with court had to be made on filing of documents. Often the agreed time for filing and that of actual filing do not align, albeit with reason as delays are caused by military permit checkpoints all over the country. Serving also proved almost impractical, with litigants resorting to agreeing on interparty emailing – foregoing the typical routes of hardcopy delivery.
The cordial approach of all members engaged in the administration of justice has by far been the cure-all in foregoing practical difficulties, a cure which shall prevail until we overcome the invisible enemy.
In summary, the practical process to access court during lockdown is as follows. A rotating roster of Judges and Magistrates was crafted with contact details of the Judicial Officer (and the Registrar in respect of High Court Judges). A litigant would have to appreciate the roster in order to lodge proceedings before the right sitting Judge or Magistrate. The litigant would then have to send their application to the Judge and Registrar – or in respect of Magistrates, tell the magistrate of the material facts and issues of the case. The Judge or Magistrate then considers whether or not the matter should be registered and heard, ultimately deciding whether or not to grant the litigant immediate access to justice.
As accepted earlier, the broad criterion and threshold of which matters would be heard was limited to matters of “extreme urgency”. The Practice Directive availed a specific list of some matters which were deemed extremely urgent and were to be heard as and when they arose. This specified list caused no friction. Unsurprisingly, it was matters not on the list which sparked opposition on the degree of urgency.
The phenomenon of ‘extreme urgency’ to our jurisdiction was placed to test in the Botswana Nurses Union case more discussed below.
What amounts to “Extremely urgent” and is it challengeable at the Hearing?
In the High Court case Botswana Nurses Union v. The Director of Public Service Management and 3 others (unreported) UAHGB-000073-20, the issue of whether the matter was one of extreme urgency arose. It was suggested in argument that the Judge decides urgency at the comfort of chambers or personal quarters.
On the 4th May 2020, Honourable Justice Dr. Radijeng issued judgment in agreement:
“…the Applicant’s Counsel Mr. Rammika raised the point that the extremity or lack thereof of the matter is determined by the Court before a case is registered and that perhaps the parties had been arguing a point when it was water under the bridge.
I will address this point first. Drawing from the Practice Directive, it is evident that for a case to be registered, the presiding Judge or Magistrate would have determined or confirmed the urgency of the matter. It follows therefore that despite the forceful submissions of the parties, the point in limine taken, that the matter was not urgent should in my view fall as the Court had already confirmed the urgency of the matter by directing its registration.” Extracts from paragraph 5-6.
The effect of this decision is that the phenomenon of “extreme urgency” will be a secret of the Judges, to never be shared to the bar by the bench. The fortunate thing is that the bench is saved from later cases referring to what amounts to extreme urgency as a cardinal point. However, the underlying effect is that the Respondent (opposition) has no opportunity to be heard in respect of the aspect of urgency. An inherent unfairness lays therein.
These inherent deficiencies in the conduct of access to justice cannot be overwhelmed with criticism. The Covid-19 era is a time of sacrifice for all. Borrowing loosely from the words of Neukircher J in Mohamed and Others v. President of the Republic of South Africa and Others (21402/20) [2020] ZAGPHC 120 (30 April 2020):
“every citizen is called upon to make sacrifices to their fundamental rights entrenched in the Constitution.” at paragraph 75.
Expecting the ordinary would be extraordinary. As a closing sentiment, here is a suggested blanket approach. If one has a matter they believe to be urgent, then they ought to lodge it – not much prejudice is suffered especially legal cost wise. No harm lays in letting the gatekeeper of extremity to decide; whether to leave you to momentary despair, or grant immediate audience.
Better to try and fail, than not try at all.