Two different court cases resolved in different ways on Monday, have shown just how profoundly Covid-19 will change the functioning of SA’s justice system.
The first was the Constitutional Court’s decision to dismiss an urgent application by the Hola Bon Renaissance Foundation, which sought to challenge the constitutionality of the state’s recently gazetted shutdown regulations.
The foundation maintained that Covid-19 — which has infected about 740,000 people globally and claimed more than 35,000 lives — did not pose a serious threat to South Africans. It further contended that President Cyril Ramaphosa had overreacted to the global crisis and this alleged overreaction would devastate the SA economy.
The case was, at best, woefully misguided and ill-informed and at worst dangerous and opportunistic gibberish. SA’s highest court rightly dismissed it on the basis that it had no prospect of success. It also did so without requiring the state to spend time and money responding to the foundation’s baseless arguments.
While chief justice Mogoeng Mogoeng has indicated that he expects potential challenges to the legality and the constitutionality of the shutdown regulations, the courts are not going to entertain cases that are not legally and factually solid.
The courts have also made it clear that they will deal with matters that can be shown to be urgent. Which brings us to the second case: the settlement between National Assembly speaker Thandi Modise and AfriForum on Monday afternoon, which resolved an impasse between the two over when Modise will return to the Potchefstroom Regional Court to face animal abuse charges.
AfriForum is pursuing a private prosecution against Modise, on behalf of the National Council of Societies for the Prevention of Cruelty to Animals. The case is linked to the 2014 discovery of 50 animal carcasses on her farm. AfriForum advocate Gerrie Nel had previously insisted that Modise must appear at court on Tuesday to explain for herself why she did not attend court the day after Ramaphosa announced that SA would go into shutdown.
Modise’s lawyers told the court that she was meeting with Ramaphosa, but AfriForum did not appear to accept that explanation. Modise turned to the high court in a bid to obtain an urgent order that postponed the case against her, on the basis, among other things, that she did not want to violate the state’s Covid-19 regulations by crossing over provincial lines.
Last week the high court in Mbombela dismissed an application by a man who wanted to travel between Mpumalanga and Eastern Cape for his grandfather’s funeral — a judgment that Modise’s lawyers were expected to rely on to emphasise the legal force of the regulations.
The judge in the Modise case had made it clear that he was not prepared to hear the case in open court, and would instead seek to facilitate an electronic hearing — a potential first for SA. But, just minutes before the case was due to be argued, lawyers for Modise and AfriForum agreed to settle it, and the speaker withdrew her application.
According to AfriForum’s Natasha Venter, Modise will still be expected to appear at court on May 8 to explain why she was not at court on March 24.
It was a quick and sensible legal solution and it sent a message: courts can no longer be domains of grandstanding and point-scoring. They need to be an absolute last resort, called upon when there simply is no other option. If SA takes that lesson beyond this crisis, the entire character of our often overly litigious court system may change forever. Arguably for the better.
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