Professor T Broodryk
Faculty of Law
The challenges confronting South Africa’s court system prior to the arrival of the novel Corona Virus Covid-19 are well-documented. The system’s immunity was already compromised, so to speak. With the arrival and continued spread of Covid-19 in South Africa, the court system is no longer at risk of being infected; it is infected. This article briefly considers the impact of Covid-19 on access to South African courts.
Limiting the right of access to courts
Section 34 of the Constitution of the Republic of South Africa, 1996 enshrines the right of access to courts. The Constitutional Court has, in relation to this right, held that it is “fundamentally important to our democratic order. It is not only a cornerstone of the democratic architecture but also a vehicle through which the protection of the Constitution itself may be achieved.” In Road Accident Fund v Mdeyide, the Constitutional Court held that “[t]he fundamental right of access to courts is essential for constitutional democracy under the rule of law. In order to enforce one’s rights under the Constitution, legislation, and the common law, everyone must be able to have a dispute that can be resolved by the application of the law, decided by a court. The right of access to courts is thus protected in the Constitution.” Pursuant to the nationwide lockdown, numerous practice directives have, however, been published which restrict access to courts. Consequently, the constitutional right of access to courts has been severely limited. It means that access to justice is currently inaccessible for a large part of South Africa’s population. Moreover, South African courts have and will continue to witness an increase in Covid-19 related litigation.
Increase in Covid-19 litigation
Covid-19 has involved the adoption and implementation of wide-ranging regulations to address, prevent, and combat its spread. The reality that confronts the South African court system is that the restrictions imposed in South Africa too, among other things, curb movement, and freedom to engage in commercial activities will almost certainly continue to be legally challenged. In many instances, these restrictions may leave individuals and companies, especially those who are in dire financial straits, with no choice but to litigate to compel performance or to recover their losses. Similarly, the consequences of Covid-19 and the interventions implemented to mitigate its adverse impact, provide fertile ground for future litigation. It should therefore not be surprising that current South African conditions present a hotbed for litigation growth. In fact, it has already resulted in increased litigation in South African courts:
Several instances of threatened legal proceedings have also recently been reported upon by South African media:
The danger that looms is that the increase in Covid-19 related litigation will continue to detrimentally affect individuals’ right to access courts. An increasingly clogged court roll will hamper the judiciary’s ability to efficiently and effectively resolve disputes. South Africa is already in a recession. Covid-19 will result in an increased death rate, financial losses, business closures, retrenchments, event cancellations, and so forth. No industry or sector is immune to its commercial and economic effects. This is likely to lead to increased litigation as individuals and companies try to recover their losses, including increased employment, consumer, and public sector class action litigation.
Mitigating the adverse impact
South Africa is likely to witness an increase in the institution of class actions. Such an increase would mirror the trend in prominent foreign class action jurisdictions. Class actions enable similar claims of a class of persons to be grouped together and pursued in a single action by a representative on their behalf. The class members stand to benefit from the outcome of the proceedings without having incurred significant expense in the prosecution of the action. Class actions facilitate access to justice. In view of the disproportionate impact that Covid-19 has on the poorest portion of the population, and taking into account that the South African class action has to date mostly been used to litigate employee benefits and constitutional rights claims, class proceedings are likely to be increasingly considered to be an appropriate mechanism to address mass wrongs simultaneously. As the rationale which underpins the incorporation of the class action mechanism into South African law is access to justice, and in view of the limitation of the right of access to courts as a result of Covid-19, it would, therefore, seem prudent that the class action is utilised to vindicate rights on a larger scale rather than simply sitting back and expecting geographically dispersed class members to, individually, approach the courts en masse.
The increased utilisation of class proceedings also serves the purpose of facilitating the judicial economy. The judicial economy in this regard arises from the avoidance of a multiplicity of actions. Other than the increased utilisation of class actions, it is suggested that the courts consider rapidly increasing their use of technology to facilitate access. Consider, for example, the recent judgment of the Federal Court of Australia in Capic v Ford Motor Company of Australia Limited (Adjournment), where an adjournment of a trial had been requested on the basis of numerous difficulties associated with a virtual trial. The court held that “[i]t is not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for such a period”. The court, whilst acknowledging that certain difficulties were posed by the conduct of a virtual trial, held that those difficulties will not necessarily lead to an unfair or unjust trial. Similarly, in Municipio De Mariana & Ors v BHP Group Plc, two defendants applied to stay proceedings and sought postponement of the hearing, which relates to the biggest class action in history, to a later date. Judge Eyre QC delayed the hearing by six weeks but confirmed that it would be possible for the hearing to proceed remotely if the current lockdown continues. Indeed, the time has come for courts to embrace court automation and modernisation as rapidly as the spread of Covid-19.
The Supreme Court of Appeal has demonstrated its willingness to use technology to provide access to the court. In this regard, a recently issued practice directive provides that “[v]irtual hearings are the default position until further direction. The primary aim is to ensure ongoing access to justice by all parties to cases before the court and safety from infection whilst facilitating hearings that allow parties to participate as fully as possible.” The judiciary faces the prospects of an ever-increasing workload and interventions such as these are necessary to promote the efficiency and effectiveness of the judiciary, to improve court performance and to advance access to courts.
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Prof Theo Broodryk is an Associate Professor and Manager of the Law Clinic. Prof Broodryk is an admitted attorney of the High Court of South Africa, a Y1 NRF rated researcher and the author of Eckard’s Principles of Civil Procedure in the Magistrates’ Court. He is a Senior Researcher at the Ius Commune Research School in the programme ‘Foundations and Principles of Civil Procedure in Europe’, a Beaufort (Colenso) Fellow at St John’s College, Cambridge, and previously attended Stanford Law School as a Visiting Scholar. Prof Broodryk is a member of the International Association of Procedural Law.
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