Legal practitioners traveling with no proper permits during lockdown may face possible criminal prosecution

May 1st, 2020

Administrator of Dr JS Moroka Municipality and Others v Kubheka (MM) (unreported case no 1170/20, 3-4-2020) (Brauckmann AJ)

In the Mpumalanga Division of the High Court in Middelburg, Brauckmann AJ said that the reason for an urgent matter allowed to be heard at this court, was because he deemed the application extremely urgent, and he did not want to cause the residents of the second applicant to suffer one more day. The applicant and respondent were involved in an ongoing dispute (and litigation in the same court) that did not concern the residents, but caused basic services to be severely disputed, and prevented the applicants to render basic services to the community and to comply with their constitutional obligations.

Brauckmann AJ said that before he formally started with the court proceedings, he was provided the documentation by the legal practitioners that were appearing on behalf of the parties, purporting to be ‘permits’ issued to them in terms of reg 11(B)(a)(i) and (3) of the regulations by the Minister of Cooperative Governance and Traditional Affairs (the minister) on 25 March read with the now withdrawn directives (the directives) by the Minister of Justice and Correctional Services (Justice Minister). In the directives the Justice Minister dealt with certain permissions and permits that have to be obtained by legal practitioners in the event that essential services had to be rendered by the legal practitioner.

The court pointed out that much of the events were overtaken by an amendment to the regulations by the minister on 4 April in terms whereof the travelling of essential service workers, which includes legal practitioners, across provincial borders were authorised, though subject still to a permit being obtained. In an exceptional event where a permit cannot be obtained, legal practitioners may still travel to the court for urgent and essential services, provided they comply with certain conditions.

The following appearances were noted on behalf of respective parties at the hearing of the urgent application on 31 March –

  • first applicant – advocate Zondo (Johannesburg Bar);
  • second applicant to fourth applicants – advocates Laka SC with Zwane (Pretoria Bar);
  • first respondents – advocate Matlala (Mpumalanga Bar);
  • second respondents – advocate Ncongwane SC (Pretoria Bar).

Other individuals and legal practitioners were also present in court at the hearing that indicated that they were legal practitioners involved in the matter, and indicated that they were in possession of permits. Judge Brauckmann AJ said those that were not in possession of permits at court undertook to provide his secretary with such permits before 12:00 on 1 April, permits which were not supplied to her.

Brauckmann AJ noted that COVID-19 had, and is still having, a devastating effect in the country’s economy and human capital. He added that it would have far reaching ramifications on the country’s future as well. He pointed out that in order to ‘flatten the curve’, President Cyril Ramaphosa – duly advised by his cabinet – declared a total lockdown of all citizens in order to prevent the further spread of the deadly COVID-19. Brauckmann AJ added that the regulations were made to keep all citizens at home and safe for at least 21 days in order to prevent the uncontrolled spread of the viral infection.

The court said 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 among the population in the country. On 31 March after finalisation of the hearing, the Justice Minister issued directives that replaced his initial directives. The ‘new’ directives are not applicable to the matter the court was seized with. The ‘new’ directives did not vary the initial directives substantially, although there are certain pertinent differences.

Among others, if a legal practitioner is not able to secure a permit from the Director of the Legal Practice Council (LPC), they may travel to a court if they have in their possession and present –

  • an original copy of their admission certificate;
  • proof of identification; and
  • 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 the official legal representative in the particular matter, and that the matter is urgent or essential.

In the regulations, ‘essential services’ is defined as ‘services as defined in section 213 of the [Labour Relations Act 66 of 1995 (the LRA)] and designated in terms of s 71(8) of the [LRA] (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’.

Paragraph B of annexure B, item 16, determines that essential services shall include and be confined to, among others: ‘Services related to the essential functioning of courts, judicial officers, the Master of the High Court, sheriffs and legal practitioners required for those services’.

The court said in terms of reg 11B(2): ‘The head of an institution must determine essential services to be performed by his or her institution, and must determine the essential staff who will perform 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’.

Only the minister may issue directions to provide further conditions that will apply to activities in respect to essential services in reg 11G(1). The court said regulations might be varied, depending on the circumstances. To date, the initial regulations still apply to the procedures in urgent court proceedings and more specifically the proceedings on 31 March in that court.

Brauckmann AJ turned to the directives by the Justice Minister. The court said the directives regulate the legal profession and their appearance at 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 the purpose of the directives, is defined as ‘the head of an institution as defined in the amended regulations, and for the purpose of these directions means the Director of a Provincial Legal Council established in terms of section 23 of the Legal Practice Act [28 of 2014], or her/his delegated authority as the case may be’.

The court pointed out that in order to avoid personal contact between any of the role players in the justice system, to avoid, to 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. That 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.

The Justice Minister deemed that 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 to 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.

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

Civil matters enrolled during the lockdown period shall not proceed but be postponed, unless identified as urgent and an essential service. The heads of court retain discretion to authorise hearings of matters through teleconference or videoconference or either electronic mode, which dispenses with the necessity to be physically in the courtroom.

The Chief Registrar must inform the parties and their legal representatives of the new court date, in writing. Brauckmann AJ said that in the Mpumalanga Division, in the case of criminal and civil matters a directive by the Judge President had already been implemented. All criminal matters were postponed to two weeks after 16 April after the Director of Public Prosecution anticipated the trial dates. All civil urgent, non-essential matters were postponed to 21 April by simply sending a letter to the legal practitioners involved. Even the Legal Aid Board’s services are limited to urgent and essential trial cases during lockdown.

Legal practitioners and officers of the 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. Legal practitioners are not allowed to cross provincial boarders or to travel from Metropolitans to District areas. 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 on presentation of proof of appointment to such office.

The court said the directives were withdrawn, and more specifically directive 9 was substantially amended. The old directives did not apply to the proceedings before the court on 31 March. Not only is such travel restricted to performance of essential services but also calls for production of such officer’s appointment to the office. Put differently the court said, legal practitioner’s admission certificate’s must be produced, unless the Director of the relevant Provincial LPC certifies, in the permits that he issues to a legal practitioner, that such practitioner is a practising legal practitioner. In terms of directive 10, 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 LPC’s Director in terms of reg 10(a)(i) to (v).

The permit can only be issued to practising legal practitioners if they are appearing in a matter enrolled for hearing and is classified as urgent in terms of the directives. The court said it seemed as if the Minister of Justice watered down the initial requirement for the rendering of services in terms of directive 5(a) from being ‘urgent and essential services’, to ‘urgent’ in directive 10(a)(iii).

The court added that, 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 reading both that what was intended by the ministers was that travelling done by legal practitioners should be the exception, and not the rule. It should be reversed from truly urgent matters that involve essential services as defined by the minister in the regulations.

The court said from the directives, read with the regulations, it is apparent that the director of the relevant LPC may only issue a permit to legal practitioners if –

  • they are a practising legal practitioner; and
  • they must appear in a case identified as urgent and essential services under reg 11A(B)(16).

The permit can only be utilised by legal practitioners with a form of identification, which includes confirmation by the relevant director, signing the certificate, that the legal practitioner is on the counsel’s list of practising legal practitioners, which in identification must be presented when the permit is used.

If such identification is not presented, or a permit is not available, such legal practitioner shall return to their residence according to reg 11(B)(1)(a)(i) for the rest of the lockdown. The court may, in the interest of justice, order that application of ‘any provision in these directions’ be deviated from. It is clear that the 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.

The court added that as dealt with in the Ex parte van Heerden (MN) (unreported case no 1079/2020, 27-3-2020) (Roelofse AJ)) (see, 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 legal practitioners shall be in terms of the regulations, duly supplemented by the directives. If a legal 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 LPC into possible professional misconduct.

Other individuals who indicated that they were legal practitioners involved in the matter were:

  • Mr S Setsoalo;
  • Ms L Romano;
  • Mr T Rampatla;
  • Ms P Kwaza;
  • Mr H Shilenge; and
  • Mr GS Thukwane.

Brauckmann AJ said that he accepted that apart from Mr Setsoalo who is a legal practitioner in Middleburg Mpumalanga, the other legal practitioners were from, either Mbombela, Gauteng, or the Mpumalanga districts. The court added that before the proceedings started, he raised the concern and inquired from the counsel in court whether their permits complied with the requirements of the regulations and directives. The counsel assured him the permits were valid. Brauckmann AJ said he could establish by merely glancing at the ‘permits’ that there was non-compliance by all, but one legal practitioner in court, with the directives and regulations.

The following legal practitioner produced a valid permit to the court:

  • Advocate Matlala: Practising in Mbombela, and a member of the Mpumalanga Bar Association, presented the court with a permit to perform essential services in terms of reg 11B(3) issued by the LPC of Mpumalanga. The Director of the Mpumalanga LPC Provincial Council, Riaz Lorgat on 30 March, issued the permit.

The following legal practitioners and individuals were found not to have complied with regulations, as they did not have proper permits to travel to courts and render or participate in court proceedings:

  • Advocate Zondo: Failed to present a permit to the secretary of the court, despite being requested to do so prior to the court proceedings and during the proceedings. The court said advocate Zondo’s conduct will be reported to the Gauteng LPC.
  • Advocate Ncongwane SC: Presented a ‘permit’ to the court, signed by Johan van Staden, the Director of the Gauteng LPC on 20 March. The permit did not comply with the requirements of the regulations.
  • Advocates Laka SC and Zwane: Presented ‘permits to perform essential services’ purporting to constitute permits issued in terms of reg 11B(3), to the court. Their ‘permits’ were issued by Sindisiwe P Xulu, the court said the ‘permits were not permits at all’.
  • Mr Setsoalo: Provided the secretary of the court with his permit on 2 April, which was only issued by the LPC on 1 April, while he confirmed with the court secretary that (as did Mr Rampatla) that their permits were with them, but they left it in a vehicle that had left in the meantime.
  • Ms Kwaza: Produced a ‘permit’ to the court, issued by her employer, SSM attorneys, who was the first applicant’s attorneys. Somebody signed the permit at Randburg on 28 March; the firms’ stamp appears on the ‘permit’. However, the ‘permit’ is not compliant with the relevant requirements of the regulations.
  • Mr Shilenge: produced a ‘permit’, which was presented by TMN Kgomo Attorneys. The court found that the permit was invalid and Mr Shilenge was not entitled to travel to Middelburg on 31 March for court proceedings.
  • Mr Thukwane: Provided the court with ‘form B’, a declaration of citizens’ movement in exceptional cases. It was apparently signed before a member of the South African Police Services in Siyabuswa, Mpumalanga. Although the document states (in para 8 thereof) that the reason for travelling was to attend court in Middleburg, it does not constitute a permit as required by the regulations and directives at all.
  • Mr Rampatla: The court found that Mr Rampatla – like Mr Setsoalo – gave the impression that he was in possession of a permit. His conduct will be referred to the LPC.
  • Ms Romano: Attended court without a permit. The court said although no permit was provided by the said individual and wanted to deal with it in this judgment, but in all fairness, Brauckmann AJ said he was not able to, unless she provided the court with further information. A directive was issued in this regard.

Judge Brauckmann said that as stated by Roelofse AJ in Ex parte van Heerden, the court was of the view that the present extreme circumstances caused by COVID-19, justifies the regulations and directives. The court added that it is justifiable and reasonable in an open democratic society. Although legal practitioners render an essential service, they are still subject to the regulations issued by the minister. The court pointed out that there are cogent reasons why these regulations were made, and the directives issued by the Justice Minister. Brauckmann AJ said by bluntly 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 South Africa any favours.

The court said it was not supposed to even have entertained the matter and should have directed the legal practitioners to return to their places of residence and remain there until the lockdown is over, and struck the matter off the roll. However, the court pointed out that it could not do so as it was apparent from the founding affidavit that the residents of Dr JS Moroka Municipality, because of first respondent’s conduct, did not have proper access to potable water. The court said water is essential to remain hygienic, and avoid infection of COVID-19.

The court pointed out that it was aware that only one judgment in the country dealt with regulations, being that of Roelofse AJ. The applicant, albeit for different reasons, and on different facts, in that matter was also a legal practitioner. The court said one would expect legal practitioners to study the relevant provisions regulating their conduct under the current exceptional circumstances before proceeding to the court.

The court made the following order:

  • Ms Romano, and Thukwane, are hereby directed to provide the court via e-mail, with their duly issued permits (if available), and the particulars of the employers, before close of business on 7 April, in the same e-mail, affidavits providing reasons why they were not in possession of the relevant permits, as required in terms of reg 11(B), read with Directive 10(A)(i) to (v) alternatively on what authority they attended court on 31 March, and any cost awards in this regard are reserved.
  • Advocate Zondo may not charge his client, alternatively instructing attorneys any fees or expenses in respect of preparation, travelling to, and from court, and attending court in Middleburg on 31 March.
  • Advocates Laka SC and Zwane may not charge their client/s alternatively instructing attorney/s any fees or expenses, and in respect of preparation, travelling to and from court, and attending court in Middleburg on 31 March.
  • Advocate Ncongwane SC may not charge their client/s alternatively instructing attorney/s any fees or expenses in respect of preparation, travelling to and from attending court in Middleburg on 31 March.
  • Ms Kwaza, and TMN Kgomo and Associates Inc, may not charge their clients any fees or disbursements for preparation, travelling to and from Middleburg, or appearing in court on 31 March.
  • Messrs Setsoalo and Rampatla may not charge their clients any fees or disbursements for the preparation, travelling to and from Middleburg (if applicable), and appearance in court on 31 March.
  • The Registrar of the court was directed to send a copy of the judgment to the Directors of the Mpumalanga and Gauteng LPCs.

The legal practitioners acting on behalf of the individual applicants, and the legal practitioners for the respondents are ordered to serve a copy of the judgment on their clients before the return date of the rule nisi on 7 May 2020, and file the sheriff’s returns on the court file.

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