The nationwide lockdown implemented in response to Covid-19 has had far-reaching implications for all areas of government. One area of particular concern across the world, and indeed in South Africa, is the effect of the lockdown on the justice system.
It is common knowledge that the South African justice system is already overburdened and under-resourced. This has resulted in a perpetual state of backlog. Cases are delayed and postponed as a result of overworked legal professionals, ineffective investigations and corruption – all of which contribute to the infringement of constitutional protections and the perennial overcrowding we see in state correctional facilities.
I have raised these issues in many debates in the National Assembly and other forums, yet no solutions have been forthcoming.
The lockdown has further served to exacerbate this backlog, unfairly impacting the rights of incarcerated, accused, and vulnerable people who are depending on the outcome of labour disputes and other civil cases for their livelihoods. In mid-May, Deputy Minister of Justice John Jeffery informed Parliament that backlogs in district and regional courts had increased by 6% and 11% respectively over the past year. I expect this to continue to increase exponentially as our courts reopen and are flooded with general litigation matters.
Is this not the time then, for our justice system to be re-engineering its administrative processes and embracing the Fourth Industrial Revolution?
The Chief Justice himself raised the issue of embracing technology when travelling to China a few years ago, noting that the Chinese legal system is, for all intents and purposes, paperless. In addition to time saved, a paperless system would assist in streamlining many processes and freeing up valuable time and resources – both human and material.
While the IFP acknowledges the strain on all arms of government as a result of the pandemic, the Constitution – as the supreme law of the nation – and the injustices of the past, especially when it comes to access to a non-discriminatory justice system, demand that our courts step up to the challenge and seek effective ways to continue functioning. This remains true even during a global pandemic.
Although it is impossible – and irresponsible – to conduct business in the traditional manner, the Bill of Rights enshrines the right to access the courts, and the right of prompt access to justice, regardless of the circumstances. The limitation clause is the recurring reason for deviation from state obligations during the lockdown, reminding everyone that the rights contained in the Constitution are not absolute. However, this is not an open licence for abuse by organs of state or law enforcement, as was evidenced by the recent Collins Khosa judgment.
In that case, Judge J Fabricius reiterated that no matter the circumstances – even those created by lockdown restrictions and regulations – there are certain inalienable rights. These include the right to human dignity and the right to life, and these rights can never be ignored or brushed aside.
Regulations flowing from the Disaster Management Act are constantly being revised, which only adds to the confusion. The IFP reminds those responsible for drafting the regulations that even the limitation clause sets a high standard to be fulfilled in order to be applied.
The regulations governing access to the courts during the lockdown spell out who may access the justice system and under what circumstances. Trials relating to corruption, sexual assault, gender-based violence, murder and the violation of Covid-19 regulations are among the prioritised matters.
The prioritisation of Covid-19 regulation violations has been a point of contention. Some members of parliament and civil society argue that this has unduly burdened an already impaired system with trivial offences, thus disadvantaging those with more serious matters.
The postponement of matters not only directly violates constitutionally protected rights, it also has financial implications for many of those concerned. The cost of legal advice in this country cannot be overstated. Limitations on access to justice means some individuals will have to apply for new court dates, which could very well be for 2021, incurring more costs.
Fair access to a functional justice system, and its relationship to one’s inherent human dignity, cannot be ignored.
In keeping with this, the government needs to consider the needs of its citizens. Now is not the time for the justice budget to be reduced. Rather, it should be increased, as the courts are often the last line of defence for the rule of law in South Africa. In particular, Legal Aid’s budget needs to be prioritised, as it supports the most vulnerable in our society and works to address inequalities related to access to justice.
Discrepancies in court maintenance and resourcing can also no longer be ignored. Some courtrooms have been able to conduct basic business through the use of audio-visual technology, and a question that arises from this state of affairs is, why do some courts have access to these services, and others do not?
The IFP acknowledges the difficult situation in which the justice system finds itself, and while the lockdown is unavoidable for now, it is not an insurmountable obstacle. Other jurisdictions have been able to fulfil the bulk of their judicial obligations through constant screening, the provision of the necessary PPE, sanitation stations, frequent cleaning, social distancing, and, where possible, video-conferencing.
Our constitutional democracy demands inclusive and innovative solutions for all who live within South Africa’s borders while ensuring that obstacles to the full enjoyment of the rights enunciated in the Constitution are removed expeditiously. A human rights foundation must be the point of departure when seeking to ensure equal and fair access to justice – or any public service – in a country where the same is already a point of contention.
The lockdown has served to further highlight the gross inequalities prevalent in our society. The IFP, therefore, encourages the department of justice to consider widening its lockdown mandate, so as to avoid further harm to the poor and most vulnerable among us, who are at the mercy of a system that has all but forgotten them. DM