By Kgomotso Ramotsho

The Office of the Chief Justice released a statement with directives from Chief Justice Mogoeng Mogoeng that will apply to the remainder of the national state of disaster period.

According to the statement, the purpose of the directives is to –

• provide guidance in relation to how judicial functions are to be managed and performed during the remaining period of the national state of disaster; and
• delegate, to all Heads of Court, the authority to take such action and issue directions as may be necessary to give effect to these directives.

General

Parties wishing to have a matter, which has been set down for hearing during the national state of disaster period, removed from the roll, shall jointly do so by issuing notice, in accordance with practice of the court or division concerned.

Criminal trials

Criminal trials already set down for hearing during the national state of disaster period will be dealt with and disposed of in a manner determined by the Head of Court.

Civil trials

Subject to the provisions of the paragraphs below, all civil trials enrolled for hearing during the period of the national state of disaster may be removed from the trial roll, and their re-enrolment shall be in accordance with a procedure determined by the Head of Court.

The Head of Court, as the case may be, the Registrar or Clerk of the court, may either –

• re-enrol the matters for hearing on the earliest available suitable dates; or
• direct that the parties apply for new set dates in which case, the legal representatives of parties shall, in the spirit of cooperation, confer with one another with the view to agree on suitable alternative trial dates and shall, on reaching agreement, apply to the Registrar or Clerk of the court for suitable dates as are available to be allocated.

Should the parties be unable to reach agreement as contemplated in the paragraph above, either party may request that the matter be placed before a case management judicial officer in order to facilitate the expeditious re-enrolment of the matter.

Cases not removed from the roll and those re-enrolled in accordance with the paragraphs above, will be dealt with in accordance with a procedure determined by the Head of Court.

The parties shall further inform the Registrar or Clerk of the court of any matter that is capable of settlement.

When a matter has become settled during the period of the national state of disaster, and the parties are in agreement on the terms of the order, the Registrar or Clerk of the court may be requested to place the matter before a judicial officer for the granting of the order. The judicial officer may then deal with the matter in a manner that they deem appropriate.

Applications

• ­Unopposed applications

Unopposed applications already enrolled for hearing during the period of the national state of disaster will be dealt with in the following manner:

• Where it is inappropriate to proceed with the matters by video conferencing or other electronic means, the matters may be postponed to dates after the national state of disaster. Matters suitable to be disposed of without an oral hearing, shall, unless the judicial officer concerned determines otherwise, be dealt with on the papers, which shall include written submissions from the parties as may be directed by the judicial officer. In instances where oral hearings are to take place, the judicial officer may direct that such hearings be by way of video conferencing or other electronic means, which are appropriate in the circumstances.
• Any rule nisi with a return date that falls within the period of the national state of disaster, and which was granted prior thereto, may be extended to dates beyond the period of the national state of disaster. Where this cannot be achieved, for reasons of urgency, the matters are to be referred to a judicial officer on duty to determine the future conduct thereof.

Urgent applications will be dealt with by the judicial officer on duty, subject to such directives as they may issue. This principle applies, subject to appropriate adjustments, to any court that requires more than one judicial officer to process or dispose of a matter.

• Opposed applications

Save where a litigant is unrepresented, and they do not have access to e-mail facilities, heads of argument shall be filed electronically.

The parties shall further endeavour to reach agreement dispensing with the presentation of oral argument and shall, to that end, inform the judicial officer presiding in the matter of their decision by no later than noon of the preceding Friday.

Where the parties have been unable to reach consensus as envisaged in the above paragraph, or where the presiding judicial officer directs that argument be presented, the judicial officer may further direct that the matter be heard by way of video conferencing or other electronic means, which are appropriate in the circumstances, and the Registrar or Clerk of the court shall provide the parties with relevant information to facilitate the hearing.

Appeals

Barring changes and adaptations in relation to process and hearings necessitated by the period of the national state of disaster, the Constitutional Court shall process and dispose of all matters in line with its Rules and the Constitution.

The presiding judge shall solicit the views of the parties prior to the appeal panel making a determination in terms of s 19(a) of the Superior Courts Act 10 of 2013.

In the event of the appeal panel determining that oral submissions are to be made, appropriate measures must be taken to eliminate the need for legal practitioners to attend court, and the presiding judge may direct that the hearing be by video conference or other electronic means, which are appropriate in the circumstances, and on such terms as they may determine.

Applications for leave to appeal

The provisions of the above two paragraphs of the directives shall apply, with the necessary adaptation, to applications for leave to appeal.

Judicial case flow management

Judicial case flow management conferences and civil roll call enrolled during the period of the national state of disaster shall be dealt with in a manner to be determined by the Head of Court. To that end, 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.

The statement added that the Heads of Court shall, during the period of the national state of disaster, issue such directions as may be necessary to manage particular circumstances not addressed by the directives above that are peculiar to their courts. Those directions shall not be inconsistent with the above directives. The statement concluded that measures referred to in the directives issued on 20 March 2020 (see here and here), will remain in force during the period of the national state of disaster. The measures referred to in the directives issued on 17 April 2020 are repealed.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.