This page highlights how judiciaries across southern Africa and other African judiciaries are maintaining access to justice and the principle of ‘open justice’ amidst court closures and restrictions on movement (“lockdowns”) to combat the spread of the Covid-19.
While states such as Kenya embraced the use of technology (Facebook, Zoom and Skype) to hear cases and deliver judgments, others such as South Africa largely retained face to face hearings but restricted them to those participating in urgent matters only. Similarly, Namibia and Botswana retained face to face hearings for certain cases but attendance was restricted to small groups of identified participants and only in respect of particular matters. For the most part, Zambia and Zimbabwe postponed non-urgent hearings but continued to hear urgent cases with relevant measures put in place for social distancing.
In the coming months, many questions will emerge of the implications for open justice and access to justice generally, of the various measures highlighted above:
- In some respects, measures such as the use of technology may improve open justice and expand access to justice;
- In others, it may be argued that the use of technology may establish extra barriers for access to justice for poor and vulnerable communities with no ready means to technology;
- Additionally, the postponement of non-urgent hearings could have implications for time-limits; or
- result in even longer backlogs of cases that have already been on long waiting lists. Such delays in justice may lead to a complete denial of justice where a claimant dies or is no longer able to offer evidence due to the passage of time.
For now it is still too early to say what the impact of Covid-19 restrictions will be on open justice and access to justice. This page displays some of the measures on access to courts adopted in South Africa, Kenya, Botswana, Ghana, Malawi, Zambia and Zimbabwe. More to follow …
South Africa
Lockdown to be eased from 01/06/2020
17/04/2020 – Consolidated Regulations in terms of Section 27(2), 17 Apr 2020 –consolidation of prior Covid-19 regulations up to 16 April 2020.
16/04/2020 – Amendment of Regulations in terms of Section 27(2), GG 43232, RG 11089, GoN 465, 16 Apr 2020 – amendment of prior regulations to extend their application to 30/04/2020.
03/04/2020 – Administrator of Dr J S Moroka Municipality and Others v Kubheka (1170/20) [2020] ZAMPMHC 3 (3 April 2020) – This case applied the earlier Covid-19 Regulations (those issued on 26/03/2020) to hear a claim relating to access to portable water. The case is notable for imposing sanctions on legal practitioners who had attended the hearing without obtaining valid licences to travel during the lockdown as required by paragraph 9 of the Covid-19 Regulations.
02/04/2020 – Amendment to the Regulations issued in terms of section 27 (2) R 446 Government Gazette 34199 of 4 April 2020 – These Amendments make provision for legal practitioners to travel across provincial borders were authorised (and subject to obtaining a permit) to provide essential services.
31/03/2020 -Government Gazette no. 43191 of 31 March 2020. GN 440, Directions issued in terms of Regulation 10 of the Regulations under the Disaster Management Act 2020 – These directions superseded those issued on 26/03/2020. Among other matters, the directions provided access to the courts for “litigants, accused, witnesses, and persons accompanying, or persons who may be needed to provide support such as those accompanying children, victims of domestic violence or sexually abused persons and persons with disabilities, family members, and members of the media.”
26/03/2020 – Unreported case number 1079/2020 in the Ex-Parte application of Carel Willem van Heerden – a case in which a legal practitioner was refused permission to travel during the Covid-19 lockdown to attend the funeral of a family member.
26/04/2020 – Regulation 43167, Government Gazette 26 March 2020, notice 418, Directions issued in terms of Regulation 10 of the Regulations Under the Disaster Management Act 2002 – These regulations dealt with, among other matters, the permissions that legal practitioners must obtain to travel to court for essential business during the lockdown.
18/04/2020 – Regulations issued in terms of section 27(2) of the Disaster Management Act 2002 – These Regulations empower the Minister of Justice and Correctional Services to “issue directions to
address, prevent and combat the spread of COVID-19 in all courts and court precincts
in the Republic of South Africa.”
06/05/2020 – Office of the Chief Justice: Directives for the Management of Courts During the National State of Disaster Period
Kenya
In partial lockdown
21/04/2020 – Judiciary to upscale justice delivery through increased use of technology; to delay resumption of open court activities – “…we have come to the conclusion that while it is prudent to upscale court activities, it will not be wise to have open court sessions at this time … henceforth, court proceedings can only be conducted remotely through increased use of technology since allowing courtroom interactions would be inimical to the interests of Kenyans as it would greatly endanger public safety.”
15/04/2020 – National Council on the Administration of Justice press statement – outlining measures to scale criminal and civil hearings and delivery of judgments in open court.
01/04/2020 – Response of Kenya’s National Council on the administration of Justice
15/03/2020 –emergency measures announced by Kenya’s National Emergency Response Committee on Coronavirus.
Botswana
No longer in lockdown
08/05/2020 – Practice Directice No 3 2020 – Court sittings shall, subject to social distancing, permit no more than ten (10) people including the Judicial officer, court personnel as well as the litigants and their legal representatives … Submissions shall generally be through electronic filing of comprehensive heads of argument. At the direction of the Judicial officer, oral submissions may be done through ICT platforms such as WebEx and video conferencing etc
Namibia
No longer in lockdown
31/03/2020 – Directions relating to judicial proceedings during the COVID-19
state of emergency
Malawi
Not in lockdown
09/04/2020 – Public Health (Corona Virus Prevention, Containment and Management) Rules, 2020, section 18
Ghana
In partial lockdown
16/04/2020 – What COVID-19 reveals about Ghana’s justice system and what needs to change
20/03/2020 – Measures by the judiciary to decongest the courts
16/03/2020 – Coronavirus: CJ Restricts Access To Courts
Zambia
In partial lockdown with full judicial operations to resume on 1 June 2020
20/05/2020 – Judiciary (Coronavirus) May 2020 Guidelines – guidelines setting out rules regarding resumption of full judicidial operations from 1 June 2020.
Zimbabwe
20/04/2020 – Lockdown Extension – Malaba Orders Two-Week Postponement On Court Cases
24/03/2020 – Covid-19 Measures – Chief Justice Malaba Orders Postponement of All Non-Urgent Court Trials
This page will be regularly updated throughout the course of the Covid crisis
Just. Aware. 