The announcement of a National State of Disaster on 15 March 2020 by President Ramaphosa pertaining to the Covid-19 virus has had an impact on operations of the courts.
The announcement of a national lockdown, to begin at midnight on Thursday, 26 March, has required further precautions to be taken and additional regulations and Directions to be made to deal specifically with the 21-day lockdown period.
Declared national disasters do limit the rights and freedoms of individuals, but these are necessary and any such limitations on rights can only be done in a way that adheres to requirements of the limitations clause in the Constitution.
Many of the provisions do have an impact on a person’s human rights, but these limitations are justified, as rights listed in the Bill of Rights may be limited under certain circumstances and under certain conditions - such as in terms of laws of general application where the limitation would be reasonable and justifiable in an open and democratic society based on dignity, equality and freedom and taking into account all relevant factors such as the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.
That’s why these measures are necessary. They will enable us to have an integrated and coordinated plan to focus on preventing and reducing the outbreak of this virus as well as be able to mitigate the severity of its impact.
At the outset, it is important to stress that Court and Masters’ services have been declared as essential services. Our courts are open and the administration of justice will not be compromised.
It is, however, necessary to further curtail the number of persons in our courtroom, court precincts and justice service points.
It has therefore become necessary for the Minister of Justice and Correctional Services to also issue Directions in terms of the Regulations and in accordance with section 27(2) of the Disaster Management Act, 2002 (Act No. 57 of 2002) to address, prevent and contain the spread of the COVID 19 in all court precincts and justice service points. Court precincts refer to an area of court house demarcated by a fence or wall amongst others, whilst justice service points refer to the centres and offices of the Masters, Offices of the Family Advocates.
These Directions were made after consultation with the Chief Justice, It should also be noted that the Chief Justice issued Directives pertaining to the prevention of COVID-19 on the 19th of March.
At the forefront of the Department’s concern is the need to ensure the safety and wellbeing of all the users of the court and to work towards preventing the possible spreading of the virus whilst not compromising the administration of justice.
Precautionary measures include the restriction of access to the courts, court precincts and justice service points and limiting the number of persons entering court buildings across the country. Only people with a material interest in a case will be admitted into the courts and they include accused persons, witnesses, victims of domestic violence and/or sexual violence, the elderly, people living with disabilities, family members, the media, representatives of special interests, support groups and those supporting children.
These Directives will apply during the period of the lockdown – i.e. from midnight on Thursday 26 March 2020 until midnight on Thursday 16 April 2020.
In essence, the number of trials needs to be limited to urgent matters only. The number of trials will be limited to only cases that are regarded as urgent and related COVID-19 to be heard as their further postponement may result in gross injustice to the affected parties.
Masters services would include issues such as letters of authority in relation to urgent financial need e.g. burials, applications for maintenance out of guardian’s funds, international child abduction cases, urgent applications, children’s court matters - e.g. the removal of children in need of care and protection and placement of children in child and youth care centres - and applications for interim domestic violence protection orders and applications for protection against harassment.
With regards to urgent matters, these will be as determined by the respective Judicial Officer. A Judicial Officer who presides in any matter brought before the court may, by the order of the court, exclude the application of any provision in these Directions where it is essential to do so.
All Audio Visual Remand centres in Correctional Centres linked to Magistrates Court must be used for purposes of the postponement of cases where accused persons are in custody and all matters where accused are kept at Correctional Facilities must be remanded in absentia for the period of the lockdown.
It is also crucial that recommended social distancing take place inside the courts and justice service points and that all court users sit at least one metre away from each other whilst inside the court building.
All measures to prevent and contain the possible spread of the virus have followed consultations with all relevant stakeholders across the justice chain. Stakeholders include the judiciary and magistracy, the National Prosecuting Authority and Legal Aid South Africa.
We all need to work together to make sure that we do the best we can to contain and minimise the potential spread of the virus. On Monday, the 23rd of March, in order to offer support to those working at the coalface of justice in our courts, and to see how the COVID-19 precautionary measures are being implemented, the Deputy Minister of Justice and Constitutional Development, John Jeffery, and I undertook unannounced visits to the Pretoria Magistrates Court and Cape Town Magistrates Court.
We were both pleased with the efforts made by all to comply with safety measures. I was impressed with developments at the Pretoria Magistrates Court where people entering the court precinct were sanitized, screened and there was adherence to the regulation that not more than 100 people enter courtrooms.
Deputy Minister Jeffery was also heartened to note that there is general compliance with precautionary measures at the Cape Town Magistrates Court and that there is a lot of support for the implementation of the measures.
Courts from the backbone of the application of the rule of law. It is important for the public to know and be assured that although our country is under a national lockdown, the administration of justice is not shutting down. If anyone breaks the law – including a contravention of the Disaster Management regulations – they will have their day in court. Criminals must not think that the national lockdown will provide them with a “get-out-of-jail—for-free” card. Our criminal justice system will continue to function and function well.
Similarly, those who are vulnerable or who need our courts to enforce their rights or to protect them can rest assured that the doors of our courts remain open to help them.
South Africa and the entire global community are confronted with an unprecedented pandemic situation which has impacted on the ability of state institutions to provide continued uninterrupted services and to curb the spread of Covid-19.
In response, the Department of Correctional Services’ approach is focused on prevention, containment/treatment and disaster recovery. A departure point for correctional services was the development of the Standard Operating Procedures (SOP’s) and Protocols geared to ensure that there are systematic procedures for officials at the coal face of corrections to deal with different situations.
As the country has been placed on lockdown, correctional facilities will function, but certain activities will be suspended, and we will continue not accepting visits. Correctional Officials render an essential service and they will therefore be expected to be at work.
Greater emphasis across all our centers is placed on prevention measures, looking at screening, improving personal and environmental hygiene, provision of personal equipment, sanitization and decontamination interventions. These aspects rest heavily on behavioral change and adaptation by officials, offenders and stakeholders.
The Department activated Infection Prevention Control (IPC) measures at all management areas with specific directives to ensure that Personal Protective Equipment (PPE) is availed and has pushed for the sanitation of reception areas, cells, offices, vehicles, keys, shackles and ablution facilities.
Containment and treatment measures will be activated in the event a staff member or inmate population contracts the virus.
It will be important that immediate steps are taken to prevent other officials, inmates and stakeholders from being exposed to further infections. These will include isolation of the presumptive cases, quarantine and referrals of confirmed cases to designated provincial hospitals for further treatment.
The Department of Correctional Services has gone a step further and appointed a team comprising of security experts as well as professionals to conduct a scenario planning exercise. They will be jointly working with other security cluster partners to explore and consider different crisis and emergency possibilities, in order to craft appropriate and operationally responsive interventions should the epidemic reach unimagined proportions.
The department recognizes the importance of keeping and maintaining correctional facilities COVID-19 free and will therefore invest a larger part of its disaster management planning in intensifying preventative measures. There is daily reporting on all preventative and containment activities as well as incidences within the correctional value chain, especially at the coalface and in departmental offices.
No positive cases of coronavirus have been reported in correctional centers thus far. Officials who travelled abroad have been screened and further instructed to go for testing.
They are not allowed to report for duty until medical results are received. Correctional Services is leaving nothing to chance, with no plans to retreat.
We appeal to communities to work together with us by adhering to regulations announced. We will ensure that offenders and officials are safe, there is no need to panic.