Administrator of Dr J S Moroka Municipality v Kubheka

COVID-19 Lawyers chastised for failing to produce the necessary permits ito the regulations and directives which caused the acting judge to deny them their fees and charges and ordered the registrar to report the legal practitioners, senior and junior counsel and attorneys, to the relevant Legal Practice Councils.

‘The regulations were made to keep South African citizens at home and safe for at least 21 days in order to prevent the uncontrolled spread of the viral infection. Should the citizens not heed the call, the pandemic might reach such proportions that South Africa’s health system would not be able to contain the spread thereof, nor treat those infected properly. Italy, and Spain are examples of countries where the pandemic ravaged the population. These are so-called first world countries with health care systems that are of very high standards. As can be gleaned from the deaths in these countries, and all over the world, the measures implemented by our Government are not only essential, but critical, not only for the Governments’ sake but for every individual’s safety and health.” [para 40]

Essence

COVID-19 Lawyers chastised for failing to produce valid travel permits and perhaps contributing to the spread of the viral infection and causing large-scale deaths. 

Decision

(1170/20) [2020] ZAMPMHC 3 (3 April 2020)

Order:

See judgment

Judges

HF Brauckmann AJ.

 

Reasons

‘Before the proceedings started, I raised the concern and enquired from the counsel in court whether their permits complied with the requirements of the regulations and directives. Although I was assured by counsel that it did comply, I could establish by merely glancing at the “permits”, that there was non-compliance by all, but one of the legal practitioners in court, with the directives and regulations. I will deal with the non-compliance later on.” [para 38]

Quotations from judgment

Note: Footnotes omitted and emphasis added

[1] On 27 March 2020 acting Judge Roelofse, in the main seat of this Division, handed down a judgment in a matter where an attorney sought, on an urgent ex-parte basis, leave from the court to travel to Hofmeyer in the Eastern Cape to assist his elderly mother after his grandfather succumbed in a fire. He, amongst others, wished to attend the funeral of his grandfather. The court refused to come to the assistance of the distressed applicant and the court ruled that:

“… I would be authorising the applicant to break the law under a judicial decree – that no court can do” .

I align myself with the reasons provided by Roelofse AJ in the said judgment, more specifically where he addressed and discussed the reasons for the lockdown currently in force in the Republic of South Africa (RSA).

[2] The applicants in this matter approached the court on 23 March 2020 on an urgent basis, enrolling the application for hearing on 31 March 2020 at 10h00. The application was opposed by the respondent (“first respondent”) and the Economic Freedom Fighters (“the second respondent”), apparently the official opposition in the second applicant’s council, sought to join the proceedings at the eleventh hour. Both the first respondent’s opposing affidavit and second respondent’s the application for joinder was only handed up from the bar in court on 31 March 2020. Adv Matlala, representing the first respondent, informed the Court that the first respondent’s opposing affidavit was served and filed on 24 March 2020.

. . . . .

THE ISSUES AND THE LAW

[4] Before I formally started with the court proceedings I was provided with documentation by the practitioners that appears on behalf of the parties, purporting to be “permits” issued to them in terms of Regulation 11B(1)(a)(i)and (3) of the Regulations by the Minister of Co-Operative Governance and Traditional Affairs (“The Minister”) on 25 March 2020 , read with the now withdrawn Directives (“the Directives”) by the Minister of Justice and Correctional Services (”The Justice Minister”).

In the directives the Justice Minister dealt with certain permissions and permits that has to be obtained by legal practitioners (“Practitioners”) in the event of essential services has to be rendered by the.

Much of the events were overtaken by an amendment to the Regulations by the Minister on 04 April 2020 in terms whereof the travelling of essential service workers, which includes practitioners, across provincial borders were authorised, though subject still to a permit being obtained.

In the exceptional event that a permit cannot be obtained practitioners may still travel to the court in urgent and essential services, provided certain conditions are complied with by him/her .

The amended regulations were however not made effective retrospectively. I am of the opinion that the intention of the Minister was not to give it retrospective force, as it deals exclusively with matters that may occur in future (funerals, travelling of essential workers, trading etc.), and is not concerned about the past .

Therefor the limitations, and requirements that existed on 21 March 2020 are still relevant to the conduct of the legal practitioners leading up to, and during the appearance in this court on 31 March 2020.

[5] Although the application was issued on 23 March 2020 it was only scheduled for hearing on 30 March 2020. On 15 March 2020 the Minister, as designated in terms of section 3 of the Disaster Management Act, Act No 57 of 2002 (“the DMA”), declared a state of disaster in the Republic of South Africa (“RSA”) in terms of section 27(2) of the DMA.

[6] The Regulations were made by the Minister on 17 March 2020 to prevent, alleviate, constrain or minimise the effects of the disaster. The disaster is the outbreak, and spreading, of the Corona Virus (‘COVID-19’) that caused a total lockdown to be implemented by the President of the Republic of South Africa from 24h00 on Thursday 26 March 2020 until 16 April 2020 at 24h00.

In terms of section 27(2)(f) of the DMA, the Minister may provide for the regulation of movement of persons and goods from within the disaster-stricken area. On 25 March 2020 the Minister, after consultations with the Minister of Health and the Cabinet, published amendments to the regulations (“The COVID-19 Regulations”, and I will refer to these regulations simply as “the regulations’ in this judgment). These regulations are also commonly known as the lockdown regulations.

[7] The regulations restrict the movements of individuals and goods severely, and severely restricts and impact on almost all of the fundamental rights in chapter 2 of the Constitution.

These include: human dignity (section 10); freedom of security of the person (section 12); privacy (section 14); freedom of religion and believe of opinion (section 15); freedom of expression (section 16); freedom of assembly, demonstration, picket (section 17) and petition; freedom of association (section 18); freedom of movement and residence (section 2); freedom of trade, occupation and profession (section 22); and education (section 29).

The final lockdown regulations severely and directly limit the aforesaid rights .

[8] In terms of the regulations all persons are for the period of lockdown (26 March 2020 to 16 April 2020) confined to his/her places of residence, unless strictly for the purposes of performing an essential service obtaining an essential service or goods, collecting a social grant or seeking an emergency, life-saving or chronic medical attention .

[9] Gatherings, apart from funerals are prohibited, and the movement between Provinces and between Metropolitan and District areas is prohibited .

[10] In terms of Regulation 11G, the contravention of the restriction of movement, or any of the Regulations, was declared a criminal offence and a perpetrator, if convicted, liable to a fine or imprisonment or both.

[11] Pursuant to these Regulations, the Justice Minister, on 26 March 2020, issued directions in terms of regulation 10 of the Regulations under the DMA (“The Directives”).

[12] The purpose of the directives is to address, prevent and combat the spread of COVID-19 in all courts, court precincts and justice service points in the RSA. The directives will, unless otherwise dictate, apply for the total lockdown period.

[13] I pause to mention that these directives, as mentioned earlier in this judgment, were withdrawn by the Justice Minister on 31 March 2020 and replaced by other directives on 31 March 2020 which I will deal with later in this judgment.

[14] As the services of legal practitioners and the courts were declared essential services, it may from time to time happen that legal practitioners should have to travel from their homes to court to attend urgent and essential matters, both criminal and civil. The normal business activities of legal practitioners were also disrupted as they, as well as their staff, in terms of the regulations, are restricted to their places of residence for the duration of the lockdown.

[15] Only in exceptional circumstances may legal practitioners leave their residences, other than to purchase food, medicine or attending medical emergencies. These directives must be read with the final lockdown regulations.

[16] In the regulations, essential services is defined as:

“… services as defined in section 213 of the Labour Relations Act 1995 (Act No 66 of 1995), and designated in terms of section 71(8) of the Labour Relations Act, 1995 (and which designation remains valid as at the date of publication of this regulation), as listed in paragraph B of annexure B as may be amended from time to time”.

[17] Paragraph B of annexure B, item 16, determines that essential services shall include and be confined to, amongst other:

“16. Services related to the essential functioning of courts, judicial officers, the Master of the High Court, sheriffs and legal practitioners required for that services”.

[18] In terms of regulation 11B(2):

“The head of an institution must determine essential services to be performed by his/her institution, and must determine the essential staff who will provide those services: provided that the head of an institution may delegate this function as may be required in line with the complexity and size of the business operation”.

[19] Further, and in the event that a legal practitioner must perform an essential service, he/she must be duly designated in writing by the head of an institution in a form that corresponds with form 1 in annexure C to the directives .

[20] Only the Minister may issue directions to provide further conditions that will apply to activities in respect of the restriction of movement, or lockdown and the exception in respect to essential services in Regulation 11G(1). The Regulations may be varied, depending on the circumstances .

To date hereof the Minister has not provided any further conditions to the regulations, therefore the initial regulations still apply to the procedures in urgent court proceedings and more specifically the proceedings on 31 March 2020 in this court.

[21] I now turn to the directives by the Justice Minister. The directives regulate the legal profession, and their appearance in the country’s courts, during the lockdown. Essential service in the directives is defined in the same terms as in the Regulations and the “Head of Institution”, for purposes of the directives, is defined as:

“… the head of an Institution as defined in the amended regulations, and for the purposes of these directions means the Director of a Provincial Legal Council established in terms of section 23 of the Legal Practice Act, or her/his delegated authority as the case may be.”. (Own emphasis).

[22] In order to avoid personal contact between any of the role players in the Justice system, to avoid, combat and prevent the spread of COVID-19 in courts, the directives restrict access to the court precincts and justice points to persons with a material interest in a case, subject to certain exceptions and social distancing requirements .

[23] Entering into courts and court precincts is only allowed in essential and urgent matters , and the number of persons is also regulated. The gravity of the Government’s concerns about the spread of COVID-19 appears from the strict limitations of attendance to courts and court precincts during the lockdown.

[24] The Justice Minister deemed the attendance of court proceedings by foreigners, and even by foreign language interpreters from other provinces, undesirable to the extent that foreigners may only attend courts if the matter is urgent, and after they have been screened and found not be infected with COVID-19 . In the event that a foreign language interpreter is not available in the relevant province where the court proceedings are to take place, arrangements are to be made for such services by way of audio-visual interpretation .

[25] No person infected with COVID-19, who has been exposed to persons from a high-risk country, or who have been in contact with persons who were exposed to persons who have tested positive for COVID-19 is allowed in courts or court precincts .

[26] No criminal trials will proceed during the lockdown period and such cases, where accused person is detained, will be postponed by audio-link or special arrangements. No awaiting trial accused will appear in courts. The situation is dire to the extent that no contact with accused persons, court personnel and practitioners seems to be allowed .

[27] Civil matters enrolled during the lockdown period shall not proceed but postponed, unless identified as urgent and essential services. The heads of court retain a discretion to authorise hearings of matters through teleconference or video conference or other electronic mode, which dispenses with the necessity to be physically in the court room . The chief Registrar must inform the parties and their legal representatives of the new court date, in writing .

In this Division, in the case of criminal and civil matters a directive by the Judge President have already been implemented. All criminal matters were postponed to two weeks after the 16th of April 2020 after the trial dates were anticipated by the Director of Public Prosecutions. All civil urgent, non-essential matters were postponed to 21 April 2020 by simply sending a letter to the attorneys involved .

[28] Even the Legal Aid Board’s services are limited to urgent and essential trial cases during the lockdown .

[29] Legal practitioners and officers of court may travel during the lockdown period, provided they comply with the strict requirements in the directive. In applying the directives, the regulations must be kept in mind. Practitioners are not allowed to cross provincial boarders or to travel from Metropolitans to District areas.

[30] In terms of Directive 9, the enforcement officers must allow judges, magistrates, legal practitioners and sheriffs to commute between their place of residence and the court within their area of jurisdiction for purposes of performing essential services upon presentation of proof of appointment to such office .

I repeat that these directives were withdrawn, and more specifically directive 9 was substantially amended. The “old directives” did not apply to the proceedings before this court on 31 Marg 2020. Not only is such travel restricted to performance of essential services but also calls for production of such officer’s appointment to office.

Put differently, a practitioner’s admission certificate must be produced, unless the Director of the relevant Provincial Legal Practice Council certifies, in the permit that he issues to practitioner, that such practitioner is a practicing legal practitioner.

That is not where it ends. In terms of directive 10, the legal practitioners who needs to attend to urgent or essential service matters during the lockdown period, must also produce a permit issued by the Provincial Legal Practice Council’s Director in terms of Regulation10 (a) (i) to (v).

This permit can only be issued to a practising legal practitioner if he/she is appearing in a matter enrolled for hearing and is classified as urgent in terms of the directives . I pause to mention that it seems as if the Justice Minister watered down the initial requirement for the rendering of services in terms of directive 5(a) from being “urgent and essential service”, to “urgent” in directive 10 (a) (iii). However, in directive 9, the Justice Minister once again refers only to “essential services”.

Both the Regulations and directives are not models of clarity when it comes to the drafting thereof, but it is clear from a reading of both that what was intended by the Ministers was that travelling by practitioners should be the exception, and not the rule. It should be reserved for truly urgent matters that involves essential services as defined by the Minister in the Regulations .

[31] From the directives, read with the regulations, it is apparent that the director of the relevant Legal Practice Council may only issue a permit to legal practitioners if:

  • (1) he/she is a practising legal practitioner;
  • (2) who must appear in a case identified as urgent and essential services under regulation 11A(B)(16).

[32] This permit can only be utilised by the legal practitioner with a form of identification, which

  • includes confirmation by the relevant director, signing the certificate, that the practitioner is on the counsel’s list of practising legal practitioners ,
  • which in identification must be presented when the permit is used.

If such an identification is not presented, or a permit is not available, such practitioner shall return to his/her residence according to regulation 11B(1)(a)(i) for the rest of the lockdown .

[33] The court may, in the interest of justice, order that the application of “any provision in these directions” be deviated from. It is clear that a court may only deviate from the provisions of the directives issued by the Justice Minister, and not from the regulations.

The Justice Minister cannot authorise the court to deviate from the regulations as the directives are always subservient to the regulations and, should the Justice Minister endeavour to authorise, or deviate therefrom, such a directive will be ultra vires.

To read into the directives that the territorial travel limitations may be “condoned” by a court if the interest of justice so demand, will amount to re-writing the regulation, which a court may not do. The wording of regulation 11B(1)(a)(iii) and (iv) is very clear.

I do not have to resort to the well-known rule of interpretation to establish what the Minister’s intention was when she promulgated it.

To read into directive 12 that the court may deviate from the limitations will be tantamount to judicial overreach . It should be left to the Minister (legislator) to amend the Regulation, than for the court to attempt to attribute a meaning to the regulations that is not justified by the clear wording thereof .

[34] As dealt with in the Ex-Parte van Heerden matter, the whole purpose of the regulations is to avoid personal contact between the citizens of South Africa in order to prevent the spread of the COVID-19 virus. To that effect these strict measures were implemented, and the regulations must be interpreted accordingly. There shall be no travelling across provincial borders, or between metropolitans, and district areas.

Any travelling done by practitioners shall be in terms of the regulations, duly supplemented by the directives. If a practitioner is not in possession of a permit that was properly issued by the relevant authority, such travelling will amount to a breach of the regulations (and directives), will be illegal, the practitioner will be left exposed to possible criminal prosecution, and investigation by the Legal Practice Council into possible professional misconduct.

. . . .

[38] Before the proceedings started, I raised the concern and enquired from the counsel in court whether their permits complied with the requirements of the regulations and directives. Although I was assured by counsel that it did comply, I could establish by merely glancing at the “permits”, that there was non-compliance by all, but one of the legal practitioners in court, with the directives and regulations. I will deal with the non-compliance later on.

THE PURPOSE AND AIM OF THE DIRECTIVES AND REGULATIONS

[39] COVID-19 had, and is still having, a devastating effect on our country’s economy and human capital. It will have far reaching ramifications on our country in the future as well. In order to “flatten the curve” the President of the Republic, duly advised by his cabinet, declared a total lockdown of all RSA citizens in order to prevent the further spread of the deadly COVID-19.

[40] The regulations were made to keep South African citizens at home and safe for at least 21 days in order to prevent the uncontrolled spread of the viral infection. Should the citizens not heed the call, the pandemic might reach such proportions that South Africa’s health system would not be able to contain the spread thereof, nor treat those infected properly. Italy, and Spain are examples of countries where the pandemic ravaged the population. These are so-called first world countries with health care systems that are of very high standards. As can be gleaned from the deaths in these countries, and all over the world, the measures implemented by our Government are not only essential, but critical, not only for the Governments’ sake but for every individual’s safety and health.

[41] By restricting movement in the country and limiting the movement between various provinces with different rates of infection, the Government is preventing the spread of COVID-19, and thereby the risk of possible large-scale death amongst the population in the RSA. Note can be taken that Gauteng has the highest infection-rate in South Africa. As at date of writing of this judgment Mpumalanga had only had 15 reported cases of COVID-19 whilst Gauteng had 533 cases.

[42] The ratio behind the regulations prohibiting movements across provincial borders makes perfect sense. The Northern Cape is the province least affected byCOVID-19. By preventing Gauteng residents from travelling to Northern Cape or Mpumalanga the spread of COVID-19 is controlled. If no Gauteng resident travels across the provincial border to Mpumalanga, the possibility of the spread of the Corona virus from the Gauteng citizens to the residents Mpumalanga is eliminated. The same can be said about travelling between Metropolitans and country districts.

[43] The Justice Minister, in the (“old”) directives (and the current directives) did not interfere, or tried to interfere, with the regulations by the Minister.

[44] On 31 March 2020 after the finalisation of the hearing, the Justice Minister issued directives that replaced his initial directives . The “new” directives are not applicable to the matter that I was ceased with. The “new” directives did not vary the initial directives substantially, although there are certain pertinent differences.

[45] Amongst others, if a practitioner is not able to secure a permit from the Director of the Legal Practice Council, he/she may travel to a court if he/she has in his/her possession and presents:

  • [45.1] An original copy of the practitioner’s admission certificate;
  • [45.2] Proof of identification; and
  • [45.3] Confirmation by the Registrar or Clerk of the relevant Court, that the matter is on the court roll for that particular day, that the practitioner is on record as official legal representative in the particular matter, and that the matter is urgent or essential (Own emphasis).

[46] Even from the amended directives, which only became effective on 31 March 2020 , it is abundantly clear that essential services by practitioners are limited to extremely urgent and essential matters.

[47] I understand the exception in the new directive 9(b)(i) to (iii) to cater for that in instances where a practitioner, for reasons beyond his/her control, after having applied with the relevant Director of the Legal Practice Council for a permit, failed to obtain one, he/she may the proceed to travel in order to assist clients with urgent and essential matters, provided he/she have complied with the requirements as set out in paragraph 45 of this judgment.

The provision in paragraph 45. supra, does not provide a blanket authorisation, or carte blanche, to practitioners to travel and render services in the normal course as if it is business as usual, without first endeavouring to obtain a permit from the Director of the Legal Practice Council. Only in the unforeseen, and exceptional, event that a permit cannot be timeously obtained from the Director of the Legal Practice Council, may the alternative procedure be reverted to by practitioners.

Put differently, the alternative procedure is the exception, and not the rule. It should not be abused by practitioners, as such abuse will not be tolerated by the courts, and may amount to unprofessional conduct. I mention this in passing as I am not called upon to interpret the relevant section of the “new directive. In any event, the “new” directives had no effect on the limitations placed on cross border, and travelling between Metropolitans and districts, as was clearly provided for in the Regulation

[48] At risk of repeating, it is clear that the regulation, read with the directives’ main purpose is to restrict the movements of persons. More so by prohibiting the unnecessary movement of people between the provinces and metropolitan and district areas. Not even a foreign language interpreter may cross provincial borders even if his/her services is needed during the lockdown. In terms of the now withdrawn regulations practitioners were also only allowed to travel to court within their jurisdictions .

[49] Even after the amendment of the directives the limitation on travelling in terms of the regulation remains effective and was in effect on 31 March 2020. The practitioners referred to above paid no attention to, alternatively ignored, alternatively failed to understand the regulations, read with the directives to the extent dealt with hereunder.

. . . . .

CONCLUSION

[90] I am, as stated by Roelfse AJ in Ex Parte van Heerden, supra, of the view that the present extreme circumstances caused by COVID-19, justifies the regulations and directives. It is justifiable and reasonable in an open democratic society. Although the legal practitioners render an essential service, they are still subject to the regulations issued by the Minister.

There are cogent reasons why these regulations were made, and the directives issued by the Justice Minister. By blatantly ignoring them or acting without proper attention being paid to the Regulations and Directives the practitioners are not doing themselves, nor the citizens of the Republic any favours.

[91] As stated somewhere in this judgment, I was not supposed to even entertain the matter, should have directed all practitioners to return to their places of residence and remain there until the lockdown is over, and struck the matter off the roll.

I could not do so as it was apparent from the founding affidavit that the residents of the Dr JS Maroka Municipality, because of first respondent’s conduct, did not have proper access to potable water.

Water is essential to remain hygienic, and avoid infection by the novel Coronavirus. Had the parties not come to an agreement, which is contained in the rule nisi that issued , which enabled the second applicant to proceed to render services to its residents, I would have made an order as prayed for in some of the prayers in the notice of motion in order to enable second applicant to comply with their constitutional obligations towards the community.

[92] I am aware of only one judgment in our Country dealing with the regulations, being that of Roelofse AJ.

The applicant, albeit for different reasons, and on different facts, in that matter was also a legal practitioner.

One would expect legal practitioners to study the relevant provisions regulating their conduct under the current exceptional circumstances before proceeding to court.

The trying times that we live in affects everyone, and although one is sympathetic to the inconvenience that is being experienced by, amongst others, the legal practitioners, the regulations and directives are there for the good of everyone.

The Constitution of the Republic of South Africa, 1996 is the supreme law of our Country. Section 165 of the Constitution vests this court with authority and the bounds within which that authority must be exercised.

Section 165(2) of the Constitution provides as follows:

“The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

[93] I accordingly make the following order:

. . . . .