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Our courts must reopen – but carefully, and with all...

Defend Truth

Opinionista

Our courts must reopen – but carefully, and with all proper precautions in place

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Like many other spheres of business and economic life, the legal profession and the judiciary is suffering under the Covid-19 lockdown. We need to reopen the courts, but under strict guidelines.

A recent report by GroundUp stated that the Legal Practice Council (LPC), a statutory body regulating the legal services sector in South Africa, has raised concerns about the limited operation of the courts. GroundUp further reported that the LPC has raised concerns that “the administration of justice has largely ground to a halt and firms have been hit financially”. It narrates an account of a criminal attorney who expressed worry that his clients are awaiting trial, which was postponed due to the lockdown, and feared that the cases will be further affected by backlogs when the courts reopen.

This situation puts into question the assurances by the Minister of Justice and Correctional Services, Ronald Lamola, that “although our country is under a national lockdown, the administration of justice is not shutting down”. And that “our criminal justice system will continue to function and function well”.

The economic impact of Covid-19 on the legal profession is becoming notable. So dire is the position of small firms that in March 2020 the Black Lawyers Association (BLA) requested the Legal Practitioners’ Fidelity Fund (LPFF) “to establish a R1-billion fund to assist small law firms and advocates” to cushion the financial burden as a consequence of the Covid-19 lockdown. The most shocking of the reports is that the South African government departments are contributing to the dire financial position of some law firms by failing to pay timeously billable accounts, and “many young advocates who are owed outstanding fees by state departments are black and women”. 

Globally, lockdown laws and regulations affected the market power of the legal services sector because they could not reach or be reached in-person by their clients or prospective clients within their geographic market. Law firms are resorting to drastic interventions to keep afloat. For example, it is reported that in the US, big law firms have started considering unpaid leave, salary cuts and/or implementing cost-cutting measures. 

Law firms in Latin America had to consider other limited options because employment laws in their countries make it difficult and not cost-effective to implement unpaid leave, pay cuts or termination of employees. 

Some law firms are struggling to keep and protect their bottom lines from the economic fallout of Covid-19. Others are failing in their financial obligations to their lenders.

On Saturday 2 May, Chief Justice Mogoeng Mogoeng issued new directives aimed at easing the strictures on the management of courts during the National State of Disaster. The new directives provide a framework for more court proceedings taking place during the lockdown, repealed the chief justice’s directives issued on 17 April and confirmed operation of the measures in the directives of 20 March. However, the new directives by the chief justice do not explicitly allow for the opening of the courts, perhaps to the dismay of the LPC that has petitioned the minister of justice to open the courts. Nor are they to be regarded as a solid plan or guidelines to reopen the courts.

The directives predominantly still favour the use of video-conferencing or other electronic means to run court proceedings. What can be considered as new in the chief justice’s directives is that they clearly give some leeway to the head of court to deal with judicial case-flow management and civil roll call hearings during the lockdown. The head of court “may, where appropriate, communicate electronically with the parties and issue such directives as may be necessary to ensure the trial readiness of any of the matters”, according to the new directives. Heads of courts have delegated authority to issue directions to deal with circumstances not contemplated therein, provided that such directions are not consistent with the chief justice’s directives.

The courts cannot remain closed for too long. The judiciary should be prepared for a post-lockdown period or for the time when the country moves into a lockdown level that allows courts to operate fully or partially. Therefore, concrete guidelines must be formulated to navigate law firms and courts through the resumption of operations. The Administrative Office of the US Courts has distributed guidelines to courts – The Federal Judiciary Covid-19 Recovery Guidelines aimed at restoring normalcy in the judiciary, which can offer lessons for South Africa as a starting reference for the on-site reopening and/or reconstitution of the judiciary.

The US Guidelines, which set four phases for the reopening of the courts, were made subject to risk conditions in local communities and on objective data. For instance, Phase One is one of essential litigation and restricted access to the courts. Remote working is encouraged with on-site court proceedings and off-site visits to supervisees and clients minimised. 

During Phase Two there is an increase in court filings and the return of non-vulnerable individuals to the workplace is allowed under strict scientific and medical conditions. There is also relaxation of the prohibition of on-site court proceedings and off-site visits to supervisees and clients, which can be increased. However, the courts and legal practitioners are still required to use “video- and teleconferencing to the greatest extent possible”. With regards to face-to-face meetings, gatherings are limited to the minimum size, and strict social distancing and hygiene protocols are highly encouraged.  

In Phase Three, courtrooms, jury rooms and cafeterias can reopen. However, strict social distancing and hygiene protocols requirements remain in place. 

In the last phase, Phase Four, the legal sector is totally reopened. Court operations are back to normal without any restrictions.

I support in principle calls to open the courts. In my view, the minister and the OCJ need not reinvent the wheel in crafting the South African judiciary reopening plan. Already, the existing directives provide a frame for a possible reopening plan. For instance, the current general and sector-specific directives cover issues such as social distancing, provision of personal protective equipment (PPEs), notification, isolation, and contact tracing procedures, sanitation and disinfection of common and high-traffic areas.

I have a few concerns though. Can we say without hesitation that our courts and legal practitioners are ready to take the “business unusual” approach? Do our legal practitioners have the necessary technological competence to run their practices under the new normal? Does the LPC have in place the necessary ethical rules to be observed by legal practitioners to protect clients from billing abuse?  

It is up to the LPC and its related stakeholders to make a good case for the reopening. They must also provide solutions to possible challenges. However, our judiciary cannot go back to pre-Covid-19 functionality, at least not in 2020. Those accustomed to the traditional way of practising law must immediately reimagine their business models.

Be that as it may, partial or full reopening of the courts will benefit both the legal practice sector, which seems to be under severe economic distress, and other legal services and stakeholders. For instance, community legal aid will benefit from some form of reopening. University law students who must do clinical legal education (CLE) or legal practice in courts and law firms to complete their qualifications will also be better served by the reopening of the courts. Otherwise, universities will have to allow students to meet their CLE requirements through video, audio, telephone seminars, computer-based training courses, or in-house instruction.

To quote Jonathan D Glater in the New York Times referring to the 2008 global economic meltdown: 

“You know things are bad when even lawyers are getting laid off. In downturns of years past, law firms exploited corporate failures and bitter, protracted lawsuits to keep busy and keep billing. But in this still-unfolding crisis, the embittered and the bankrupt have been relatively slow to appear, at least in court. Law firms, in turn, are feeling the strain.” DM

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