The effects and aftermath of the 1918 (H1N1) pandemic, commonly referred to as Spanish Flu, are repeating themselves in the form of the coronavirus (Covid-19). It is like the early 20th century is reviving itself when institutions, including the courts, had to close doors to the public to avoid the devastating impact of the pandemic.

It is reported that during that period the Spanish Flu “killed more people in absolute numbers than any other disease outbreak in history”. A contestable death toll of about 21 million has been reported in epidemiological studies.

“In South African cities, those between the ages of 20 and 40 accounted for 60% of the deaths”, Knobler, Mack, Mahmoud said in their seminal work titled The Threat of Pandemic: Are We Ready?

How are the courts affected?

Fast forward to 2020. No one is safe from the Covid-19 pandemic. Even the courts are vulnerable. For example, the US Supreme Court postponed all its oral arguments and announced the closing of the court to the public indefinitely.

“Out of concern for the health and safety of the public and Supreme Court employees, the Supreme Court building will be closed from 4:30 p.m. on March 12, 2020, until further notice,” the US Supreme Court said. The closure is the first since the Spanish Flu. 

In South Africa, Gauteng High Court Judge President Dunstan Mlambo on Monday announced the closure of the court to the public, and that only enrolled matters will be heard behind closed doors. This is in keeping with public health precautions and responses to Coronavirus.

“Save for urgent court matters, judges and staff will deal only with matters that are already enrolled for hearing; provided that parties may agree to postpone matters (including unopposed matters) that have been enrolled during this period. In such event, parties must alert the relevant judge’s secretary of any agreed postponement as a matter of urgency,” Judge President Mlambo said in a directive issued to all judges, court staff, practitioners and the public.

Mitigating factors embraced by the courts

Unlike the US Supreme Court, the Gauteng High Court did not put a stop to oral presentations. “No member of the public is permitted to enter the court building, or to attend any hearings, whether civil or criminal, as a spectator. Only practitioners, witnesses and accused persons are permitted to attend,” said Mlambo. However, a cursory reading of the announcement directive points towards the minimisation of direct contact with the court. 

Legal practitioners are required to use emails when corresponding with the Registrar’s Office on the filing of all further notices, pleadings, heads of argument, and other pleadings if the matter was originally not filed through Caselines. Caselines is the paperless digital court system. 

The directive also calls for teleconference/Skype meetings per arrangement between the parties and the appointed judges. Courts too are embracing social distancing. Moreover, judges will not be shaking hands with any practitioners. Case management will be conducted by teleconference/Skype per arrangement between the parties and the appointed judge. The issue of working from home has been bandied about in other sectors.

Interestingly, the court is allowing judges with no hearing scheduled to work from home, while on the other hand, their administrative staff (judges’ secretaries) may only work from home after a determination with the judges. What is important is that judges’ secretaries must ensure that there is continuity of the court’s work – hence they must continue to monitor and respond to emails, maintaining telephone contact with legal practitioners and others. But the arrangement does not allow for a total absence of warm bodies. Some skeletal staff is expected to be available to carry on with general work of the court. 

I found it interesting that at the US Supreme Court a concern has been raised that some of the judges are older and thus at the highest risk from Covid-19 – many are above 60 and the 87-year-old Ruth Bader Ginsburg is also a cancer survivor. Will our courts across the different jurisdictions also consider the age of the judges and magistrates? 

What is to happen should the pandemic last for months?

The question on the lips of many was whether the Gauteng High Court will signal the shutdown of the courts, and if so, for how long? What if the pandemic lasts for months? Chief Justice Mogoeng Mogoeng has announced that there will be no closure of the courts yet. According to Mogoeng Mogoeng, it would be short-sighted to move into shutdown mode because “we don’t know long this will last for”. This timely announcement by the Chief Justice makes a lot of sense.

As head of the Judiciary and head of the Constitutional Court, the management of judicial functions in the country rests on the shoulders of the Chief Justice. In terms of the Superior Courts, Act 10 of 2013 (section 8) the Chief Justice may issue written protocols, directives, guidance and advice for norms and standards, and about any matter affecting the dignity, accessibility, effectiveness, efficiency or functioning of the courts. It is thus not surprising that the Chief Justice has weighed in concerning the functioning of the courts during this crisis. 

Concerning the shutdown of the courts and/or the extraordinary-circumstances leave of judicial officers, section 9 of the act becomes relevant as it states among others that “Chief Justice must determine recess periods for Superior Courts in consultation with the heads of Courts and the ministry.” 

The wheels of justice cannot be allowed to grind to a halt – at least not as yet. There are too many injustices, which are common occurrences in South Africa, for the administration of justice to be suspended.

A statement by Heads of Courts to announce measures taken to curb the spread of the coronavirus reads, in part: 

1. Persons with a material interest in a case, such as practitioners, litigants, accused persons, witnesses, those who may be needed to provide support such as those accompanying children, victims of domestic violence and/or sexual abuse, elderly and people with disabilities, family members, representatives of special interest or support groups and members of the media will be permitted to enter the court precinct.
2. It is imperative that all court buildings have running water, toilet paper, soap, disinfectant wipes and all other relevant health and safety material.
3. A distance of one metre shall be maintained between people seated in a courtroom.

Where to from here?

What the courts, litigants and legal practitioners should be doing is to make full use of Caselines and similar platforms to dispense justice. Online alternative dispute resolution for those courts using court-annexed mediation must be explored. 

Also, parties must consider online litigation, where possible. This is not the first pandemic, and it is surely not the last to affect the country’s judicial system so negatively. Long-term solutions must be exploited in anticipation of future pandemics and other disasters. DM