Daily Maverick has run and continues to run a series of news updates and articles about the impact of Covid-19. For instance, the Covid-19 impact will be felt by socially and economically vulnerable groups such as women and children, by the education system, by workers, by the credit and financial market that is facing possibly yet another meltdown, by sporting activities with athletes losing out on the postponement of the Tokyo Olympics, by the restaurant services not considered essential services trade that have effectively been shut down by a directive Minister of Tourism Mmamoloko Kubayi-Ngubane signed off on 24 March 2020, by places of worship and others. The list goes on. The cumulative political, economic, and social challenges that the efforts to combat the Covid-19 pandemic the citizens and residents of South Africa face can never be overstated. Everybody and everything is overwhelmed.

Rebecca Davis provided a pithy account of the ministerial press briefings by ministers from the social development, housing and higher education departments on how they will operationalise the lockdown declared by President Cyril Ramaphosa.

The mix of positives and negatives provides an indication of how unprepared our governmental departments and institutions are for eventualities like epidemics and pandemics. The fact that the “South African Social Security Agency (Sassa) offices will be closed during the lockdown and not processing new grants applications” is one such indication. Those dependent on grants as new applicants will see and experience no social justice.

Another report on the government explanations by Davis points to institutions scrambling and trying to save face because they were unprepared for the pandemic.

With regards to courts, in my previous article I focused briefly on the need of courts to find long-term solutions to function in emergencies such as the Covid-19 emergency. Some interventions, though shallow, such as the 17 March 2020 statement by heads of courts were more geared towards putting in place measures to curb the spread of Covid-19. Effectively overruling Gauteng High Court Judge President Dunstan Mlambo’s directive on how the province’s courts would respond to the spread of Covid-19, Chief Justice Mogoeng Mogoeng on 18 March 2020 issued a directive on new court processes intended to prevent the spread of the virus, which has been published in Government Gazette 43117.

The Gazette declares restrictions on access to the court precinct, generally allowing only essential persons and those material to the proceedings.

“If the situation were to arise where, God forbid, coronavirus has covered millions and millions of South Africans, we would have to reposition ourselves then based on the advice by those who are in the medical space,” Mogoeng said regarding possible changes to the directives. He also indicated that our “[c]ourts will run as normal…” subject to observing attendance limitations and numbers as per the set regulations under the Disaster Management Act.

With this decision, it was as if the chief justice was echoing the position from the court document of the US, called a road map for court, which declares that:

“Courts are not like ordinary businesses, as they must continue operating to maintain the rule of law and ensure an orderly society under any circumstances. Criminal laws must continue to be enforced, personal rights and liberties must continue to be protected, cases must be adjudicated, and controversies resulting from pandemic conditions must be addressed.”[p.10]

The chief justice’s directives deserve some applause, particularly as they confirm the unflinching resolve of our judiciary to dispense justice as mandated by the Constitution. The following should be noted:

• That arrest and/or detention order pursuant to the new regulations promulgated by the Department of Cooperative Governance and Traditional Affairs (Cogta) may be challenged before the courts. Come midnight tonight challenges and legal disgruntlement will start to trickle in.
• That not going full-blast on e-justice is avoiding the inevitable. E-courts may be needed to avoid face-to-face contact or confrontation in courts, particularly during times of pandemics and national disasters. In a foreword to the 2018/2019 Annual Report of the Office of the Chief Justice, Justice Minister Ronald Lamola spoke of a “technological shift affected by the global Fourth Industrial Revolution in South Africa” and that the Office of the Chief Justice (OCJ) is not an exception”.

Lamola emphasised the importance of “modernisation of the courts through the use of technology is an important initiative to ensure effective and efficient court administration as well as improved access to justice.”

In his directive, Chief Justice Mogoeng showed support for e-justice. He restricted entry to the court precinct to persons with material interests in the case and essential court staff. Audiovisual remand centres and other electronic communication in correctional centres linked to magistrate’s courts will be used for the postponement of cases. Electronic distancing will be the norm. Perhaps one must implore the OCJ to fast track the development of the e-filing solution, which was expected to be rolled out at the superior courts during the 2019/20 financial year.

“The system will enable all records linked to a case to be easily managed, secured and shared; contributing to the effective and efficient delivery of court services,” as noted by the Annual Report of the OCJ [p.25].

• That the judiciary by its own admission has stated that service delivery is also an obligation of the courts. It is a time like this that calls on the OCJ to strengthen the implementation of the service delivery improvement plan (SDIP) that is flagged for the 2018-2021 cycle. Equally, the Customer Service Improvement Tool roll-out must be monitored. It is disappointing that the country is taking tortoise-steps to get to the full realisation of e-justice, which could have helped during this time of the virus.
• That substantive and due-process issues may arise following others such as mandatory quarantine and isolation orders, and habeas corpus motions. The courts must be available to be approached to adjudicate over such order and legal processes. As reported in Daily Maverick by Ayanda Mthethwa, the 2017 regulations relating to the surveillance and the control of notifiable medical conditions make it a must for the authorities to approach a high court for an order if: “a person who is a clinical or laboratory-confirmed case, carrier or contact of a notifiable medical condition refuses to be tested, admitted at the health facility or quarantined”.
• That the conduct of searches and seizures of premises in terms of the Criminal Procedure Act of 1977 and the related regulations and lock-down directives enacted in terms of the Disaster Management Act to determine Covid-19 health risks may be challenged. It is for this reason that the courts must remain accessible – even if it means putting into place with immediate effect e-courts.
• That issues of violations of human rights and freedoms are likely to arise, and some may need urgent court intervention.

“The violation of human rights has become a thread that runs through the aetiology, determinants of transmission, susceptibility to, prevention and treatment strategies for Covid-19”, wrote Mark Heywood.

• That any stoppage of the courts’ functioning must be mindful of their workloads and backlogs. According to the South African Annual Judiciary Report 2018/2019, for instance, some high courts including the Constitutional Court have failed to reach their own set targets. An almost complete stoppage of the courts’ system with judges going on leave will aggravate the situation. Courts must be classified as rendering essential services. It was disappointing though that Ramaphosa’s lockdown declaration did not exempt the courts from the lockdown.

All court interventions noted that during this time of Covid-19 crisis, it should remain an important concern of the OCJ, government and us as citizens that our judiciary should pay special attention to the variety of issues within and/or impacting their constitutional mandate. Further, our courts must always be prepared or at least have a framework to put in place without delay a disaster or crisis strategy as the need arises.

Planning is part of good governance. Forget about ad hoc directives and regulations by heads of courts and the OJC – at least for now. Do we know how really prepared our courts are to operate during epidemics, pandemics and natural disasters of gigantic propositions? Here I am not talking about legal practitioners, judges, magistrates and other court officials striding inside the courtroom with pairs of latex gloves, face masks, and bottles of hand sanitisers. It is about more than that. If our judiciary was prepared and proper planning was in place we would not have seen the conflicting directives issued by the judge president of the Gauteng High Court and the chief justice of South Africa.

While researching this article, I came across the US Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Court (Guidelines), released in March 2007, which addresses the issue of court planning and preparedness in times of pandemics and disasters. The guidelines were crafted following the National Strategy for Pandemic Influenza of 2005, and were designed to plan for future pandemics after the experience of the outbreak of severe acute respiratory syndrome (Sars). The guidelines were an acknowledgement that future pandemic occurrences will have a great impact on the administration of justice and its institutions.

In particular, the task force that was constituted to craft these guidelines had a specific mandate to look at pandemic planning from four perspectives, namely: “(1) preserving the continuity, integrity, and independence of the judicial process (i.e., the rule of law) during a pandemic emergency; (2) substantive legal issues that will likely arise; (3) interagency relationships and coordination that will be needed, particularly among the courts and state and local public health agencies; and (4) the court as a workplace”.

The South African judiciary must plan and prepare for the next pandemic or epidemic after Covid-19. It is during this time that our courts should operate optimally. To borrow from the US Department of Justice’s Guidelines, alongside health departments and others:

“Courts also will likely be called on to address a range of substantive legal issues arising out of a pandemic emergency. Preserving constitutional protections – including those relating to due process, searches and seizure, and equal protection of the laws – will fall to the courts in each community. Courts will need to review and rule on emergency orders, as well as develop mechanisms to ensure the continuity of vital court operations in a manner that does not jeopardize the health and safety of the judicial workforce or members of the public appearing before the court.”

Allow me again to refer to the US Guidelines, for the following statement that in my view is relevant to determining the role of South African courts during the pandemic.

“In the case of a pandemic, however, it is vital to have the courts available and the judges prepared to effectively and fairly adjudicate whatever cases the emergency may generate. This requires a judiciary prepared and able to balance an individual’s liberties with the community’s public health interests to protect the […] Constitution and preserve the rule of law”

May God protect our people should the courts fail to plan for future pandemics and disasters. Hosi katekisa Afrika. DM