An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The lockdown regulations and directives, issued in terms of the Disaster Management Act, severely restrict the movement of individuals across South Africa. It is perhaps not surprising that not all South Africans in a position to do so are complying with these restrictions. What is surprising is that lawyers – who are supposed to uphold the law and set an example – have now also been caught ignoring the applicable lockdown regulations.
In terms of the lockdown regulations aimed at slowing down and/or suppressing the spread of Covid-19, the services of legal practitioners and the courts are essential services, which means that attorneys and advocates may, in exceptional circumstances, leave their homes and attend urgent and essential court hearings. But they can only do so when dealing with essential and urgent matters.
In terms of the regulations, legal practitioners who need 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. 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.
When 10 lawyers arrived at the Mpumalanga High Court in Middelburg on 31 March this year, 5 days after the lockdown commenced, to represent clients in the urgent matter of Administrator of Dr J S Moroka Municipality and Others v Kubheka most of the lawyers appearing on behalf of the parties provided the court with documentation that purported to be “permits” issued to them in terms of the relevant regulations. Some did not produce any “permits” at all. (The regulations have since been amended but this had no practical bearing on the outcome of the case.)
But there was a problem. In the words of the presiding judge:
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.
Despite the fact that many of the permits did not seem to comply with the regulations, the presiding judge nevertheless proceeded with the matter because he deemed the application extremely urgent, and did not want to cause the residents of Dr JS Moroka Municipality to:
suffer one further day because the applicants and respondent was involved in an ongoing dispute… that did not concern the residents, but caused basic services to be severely disrupted, prevented the applicants to render basic services to the community and to comply with their constitutional obligations.
But in a scathing judgment handed down last Friday, the judge took issue with the nine lawyers who had not complied with the lockdown regulations, pointing out that they had acted “recklessly by travelling across the border in breach of the regulations and openly defied the regulations”. The court further pointed out that the failure to obtain the requisite permit amounted to a criminal offence.
In obiter remarks (meaning that they are not binding on other courts) the court endorsed the view that the “present extreme circumstances caused by COVID-19, justifies the regulations and directives”, explaining that these are:
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.
In my view, this sweeping endorsement of the constitutionality of the regulations (albeit obiter) goes too far. While few people will argue with the view that regulations to slow and/or suppress the spread of Covid-19 are necessary, it may well be that specific regulations are not constitutionally compliant. As the court pointed out, the regulations:
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.
To determine whether the limitation imposed on these rights by the various regulations are justifiable in terms of the limitation clause, one will have to assess each regulations separately to decide whether it is justifiable or whether it goes too far. Some regulations may be compliant, while others may be overbroad. But this can only be determined by engaging with the specifics of each case.
That said, the court’s criticism of the individual legal practitioners is well made. In this regard, the court remarked that:
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 court also pointed out that the conduct of the legal practitioners amounted to unprofessional conduct, seen in light of the code of conduct of legal practitioners. In this case there was a failure to uphold the highest standards of integrity, accountability and diligence in carrying out all their professional responsibilities as required by the ethical rules of the profession.
Legal practitioners, as members an honourable profession that interprets and applies the laws, must set an example to other citizens, and dare not flout with it. They must be seen to adhere to the law. Any breach of the law, and regulations in an open fashion will cause the general public to lose faith in the legal profession and system.
The presiding judge offered the two lawyers who had not provided any kind of “permit” at all with an opportunity to do so. The court hit the legal representatives who had submitted “permits” that were “not permits at all where it would hurt most: their pockets. Thus, the court prohibited the lawyers from charging their clients “any fees or expenses in respect of preparation, travelling to, and from court, and attending court in Middelburg on 31 March 2020”. The matter was also referred to the provincial Legal Practice Council for further action.
Hopefully the judgment will serve as a warning to other lawyers who believe they can take short cuts for no other reason done that they are lawyers.BACK TO TOP