Written by Daniel Nyatsanza – Candidate Attorney and

Tshegofatso Monnana – Associate

On 16 March 2020, unprecedented steps were taken to limit the public’s access to the courts, in a directive issued by the Honourable Judge President Mlambo (“the JP”). In this directive, the JP implemented various provisions to address the spread of Covid-19 in the Pretoria and Johannesburg High Courts which, inter alia, included the following: that the Judges and court staff would only deal with urgent matters and matters already enrolled for hearing and that access to the courts would be limited to certain individuals.

On 19 March 2020, Chief Justice Mogoeng Mogoeng issued a directive extending the restriction of the public’s access to all court precincts.[1] In terms of this directive, only persons with a material interest in a case are authorised to enter the court precinct, for example; litigants, the accused and witnesses.[2] Any other persons, non-essential persons, need to obtain permission from the Head of Court to be allowed into the court precinct.[3]

Thereafter, the Minister of Justice and Correctional Services, Mr Ronald Lamola (“the Minister”) set out various provisions in the Directions in Government Gazette No. 43167 of 26 March 2020 (“the Directions”).[4] In the Directions, the Minister set out, inter alia, extensive restrictions on the access to courts and all justice service points, as well as suspending and amending various processes in criminal and civil trials. Most importantly, he suspended all time limits in relation to civil cases.[5] However, the Directions were subsequently withdrawn and replaced by Government Notice No. 440 in Government Gazette No. 43191 of 31 March 2020 (“the Replacement Directions”). The suspension of time limits has been replaced and as such, parties involved in existing civil litigation are required to comply with all time periods prescribed in the Rules of the Court and/or any statute to during the lockdown period.

Notwithstanding the withdrawal of the Directions, the impact on current and future litigation has and will continue to change in light of the threat posed by Covid-19 and the national lockdown. While the national lockdown, as a result of Covid-19, has limited the public’s access to the courts, it has by no means stopped the emergence of conflict and/or dispute or the continuation of existing cases.

Therefore, it is evident from the Replacement Directions that in certain instances, access to the courts has been limited despite the withdrawal of certain restrictions. In respect of civil cases for example, all pleadings and notices must still be served and filed but cases not identified as urgent or essential services may not be placed on the court roll for the duration of the lockdown.[6]

In view of the above, resolving a dispute may be delayed or prevented because they are not considered urgent or essential services. However, urgent or other existing cases may still be heard by the court because the Heads of Courts still have the discretion to authorise the hearing of matters through teleconference or videoconference or any other electronic mode.[7]

In order to mitigate the current challenges associated with litigation due to the national lockdown, HNM will continue to consult with its clients albeit via electronic or telephonic means. HNM will continue to serve and file documents relevant to any matter. The professional staff is available electronically and will ensure that these processes are untaken, but if it becomes necessary HNM will obtain the relevant permit from the Legal Practice Council.

In addition, HNM is of the view that online dispute resolution services may be the solution to resolving disputes. HNM has played a key role in facilitating and mediating, inter alia, commercial disputes, labour relations’ matters and terms and conditions of employment. HNM has established an online platform to offer dispute resolution services and expertise through a remote conferencing application, this will offer parties a sustainable and cost-effective method to resolving disputes. This effective platform will allow the parties to engage without the need to be physically present and having the dispute facilitated or mediated by an experienced professional.

Mediation is a form of dispute resolution, and the process is voluntary in nature because it allows the parties to manage conflict and resolve disputes on their own terms as the process is tailored to provide for the circumstances unique to each case. The parties will be carefully guided by an independent mediator, to explore possible solutions and to create an understanding of what may be possible to achieve the best outcome for all the parties. HNM’s mediators have the expertise, due to their extensive experience, to defuse tensions between the parties and create a climate conducive for effective dialogue and negotiation.

The flexibility of online mediation allows the mediator, by agreement with the parties, to call upon the assistance of individual experts or entities to assist in addressing particular issues. The HNM mediator will play a crucial role in clarifying the issues and compiling an agenda of issues for mediation, and then manage negotiation around those issues with a view of moving the parties towards agreement. Any agreement emerging is reduced to writing, signed by the parties and is binding upon them.

In conclusion, online dispute resolution services offered by HNM, such as mediation, offer a plausible solution to the barriers to litigation caused by Covid-19 and the national lockdown. Due to the uncertainty regarding the duration of the national lockdown, the possibility of the courts returning to normal processes also remains uncertain. In addition, certain restrictive measures may still be enforceable even after the lockdown is lifted. Therefore, HNM’s online dispute resolution services aim to ensure that our clients avoid major delays and are able to resolve their disputes in an effective and efficient manner.

[1] Government Notice No. 187 in Government Gazette No. 43117 of 19 March 2020.

[2] Ibid, para 2.1.

[3] Ibid, para 2.2.

[4] Published by Government Notice No. 418.

[5] Ibid, para 5(c ).

[6] Ibid, para 5(a).

[7] Ibid.