The country’s busiest courts will be on a virtual lockdown on Monday, clogging up an already under-pressure court roll in response to the EFF-led anti-government protest — a development that may signal lack of faith in the state’s ability to maintain order during the demonstrations.
High court directives, seen by Business Day, show various divisions directing that matters be postponed or go virtual in response to what is widely expected to be the biggest mass protests yet against the government of President Cyril Ramaphosa, who has presided over a floundering economy, record unemployment and paralysing electricity outages.
Lawyers around the country were scrambling at the weekend in an attempt to understand how or which of their matters would be heard — if at all — on the day of the public protest.
The remote working arrangements for the country’s busiest courts can be seen as a demonstration of a lack of confidence in the police, which was caught napping in 2021 when protests against former president Jacob Zuma morphed into an uncontrollable looting frenzy that left hundreds of people dead and whacked the already fragile economy.
In the Western Cape, high court deputy judge president Patricia Goliath, in her capacity as acting judge president, issued a memorandum dated March 16 postponing all criminal matters set down for Monday to Wednesday.
Civil proceedings
The postponements will occur without the accused’s presence.
She also indicated civil matters set down for Monday “may proceed virtually at the discretion of the presiding judge”.
Some Cape Town lawyers were uncertain whether the high court building itself would be open and were scrambling to file papers for their matters.
In Gauteng, deputy judge president Roland Sutherland, issued a notice dated the same day as Goliath’s. It indicates that all civil court proceedings set down for Monday in Johannesburg will be conducted remotely and virtually.
This means no matters will be heard in open court.
“All civil court hearings for March 20 will be conducted virtually. The presiding judge’s secretary will create a link and circulate to the parties,” the court directive reads.
In KwaZulu-Natal, judge president of that province’s high court, Thoba Portia Poyo-Dlwati, on March 15 directed that civil matters scheduled for Monday would be heard instead on Wednesday.
It is unclear whether Zuma’s private prosecution case against a News24 reporter will go ahead on Monday, as Poyo-Dlwati did not mention criminal matters in the directive.
SA courts are no strangers to having to react suddenly to external, potentially disruptive events.
Judges Matter, a civil rights watchdog, said: “Covid-19 was the most severe instance but we note the [KwaZulu-Natal high court’s] nimble response to the July 2021 riots and the Gauteng high court’s response to stage 6 load-shedding.”
At the time of writing, there was no official statement from the judiciary or office of the chief justice.
When asked for a response, the Legal Practice Council, the statutory body that regulates all SA lawyers, indicated the judiciary or department of justice were better placed to have a view. However, it did circulate the relevant directives to legal practitioners as requested by the courts.
Lawyers confirmed this to Business Day, though one attorney expressed frustration because she received this email, seen by Business Day, only at about 2pm on Friday.
But in addition to lawyers’ confusion, there are wider concerns for non-lawyers too. Courts, after all, serve as places where one can notionally obtain justice and protection, in particular for the most vulnerable.
This is why, as Judges Matter notes: “While we share the frustrations of many in SA, we are not convinced that a general shutdown will improve access to justice. For example, in cases of domestic violence and [gender-based violence and femicide], we would be very concerned about survivors not getting services on a day following a weekend, where violence generally shoots up.”
Intimidation
This wider concern is echoed by 31 civil rights organisations that signed a joint media statement indicating their opposition to the protest. The signatories include the Legal Resources Centre, the Council for the Advancement of the SA Constitution, the Helen Suzman Foundation and #UniteBehind.
“Insisting that roads will be shut down and that no trucks, trains or buses will move, and hinting that businesses that remain open could be looted are subtle forms of intimidation that must be called out,” they write. A clear distinction exists “between the constitutional right to protest ... and the fear mongering and forced shutdown”.
The constitution says that courts should be able to operate “without fear, favour or prejudice”. This response from judicial leaders seems to be one way to continue the business of court, while operating within a time of uncertainty.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.