19 May 2020

As economic devastation escalates, it remains a balancing of rights

Cape Town under lockdown; the Chief Justice was not initially consulted over the emergency lockdown measures

Zenobia Du Toit reports on how family courts are adapting to South Africa's National State of Disaster

In March, directions in terms of the Disaster Management Act, 2002 to combat the spread of the Covid-19 virus were issued.

Initially the Chief Justice was not consulted in regard to the severe restrictions placed on courts and access to justice. Concerns were expressed that the limitations were unconstitutional. Further directions were issued after consultation with the Chief Justice.

The regulations allowed entry into the courts only in respect of urgent and essential matters. Only persons with material interests in a case may enter. A person who entered South Africa a week before, during or after the declaration of the National State of Disaster, may not be allowed to enter unless screened, and unless the matter is urgent or essential. A person who has been in contact with persons from high risk countries may not enter. Social distancing has to be observed.  

Civil cases not identified as urgent and essential services, may not be placed on the court roll. However, heads of courts retain the discretion to authorise the hearing of matters through teleconference, video conferencing or any other electronic mode. 

Service of process and execution of writs are limited to urgent and essential cases. The following family law services would be dealt with:

  • Orders of court in regard to foster care, adoption, removal of children in need of care and protection, placement of children in child and youth care centres and international child abduction cases.
  • Certain limited Maintenance cases.
  • Protection orders for interim domestic violence, but return dates shall be postponed.  

Legal practitioners who are engaged in litigation processes during the lockdown may seek a permit, which is only to perform an essential service, and may only be issued if the practitioner is appearing in a matter actually enrolled for hearing which is classified as urgent.

This has restricted the movement of practitioners and prevented access to justice in many instances.

The Department of Social Development issued a directive on 30 March dealing with inter alia child and youth care centres to the extent that no children may be released from the facilities, no visitation is allowed, family reunification and interaction programmes are suspended, no new admissions are allowed except for children in conflict with the law and children declared to be in need of care and protection.

The same applies for shelters for victims of crimes and violence, including old age homes and frail care facilities. Lack of resources, the social distancing requirement and the spike in cases have led to extreme hardship and the effective non-availability of shelters. 

Movement of children

Movement of children between co-holders of parental responsibilities was initially prohibited to ensure non-exposure to infections. The parent who is not with the child may, in order to maintain a personal relationship with the child, communicate on a regular basis with the child, for example, using telephonic or electronic communication. The parents must communicate to their children what Covid-19 and the temporary precautionary measures are.

Many parents who had exercised extensive contact were effectively cut off from physical contact with a child. Representations were made to the respective ministers. Urgent applications were brought to court for the return of children with mixed success.

On 7 April, the regulations were amended to allow movement between parents where such arrangements are in place in terms of a court order or where the agreement or parenting plan had been registered with the Family Advocate, provided that the household to which the child is to move is Covid-19 safe.

This amendment gave rise to criticism. Many parents had entered into parental rights and responsibilities agreements but had not yet registered these nor made these court orders. Children were still physically cut off from one parent.

The Regulations were amended to allow a co-holder, who is in possession of a birth certificate of the child, contact with the child, subject to the previous safeguards. Interprovincial movement of children however would require a court order.

In the Western Cape High Court, for example, only urgent motion applications were to be issued or heard relating to Covid-19, ia bail, urgent maintenance, domestic violence-related matters and cases involving children.  The issuing of all other processes were suspended.

No new civil matters would be enrolled during this period. Civil trials, and so on already enrolled should be postponed. The services of other summons and applications should be suspended. No new civil case management hearings would be allocated.

In Gauteng, the High Court moved to digitalisation and off site meetings/hearings.

On 17 April, the Judge President of the Western Cape High Court directed that no judicial case flow management conferences will be held, communications shall take place electronically, and such directives as may be necessary to ensure trial readiness will be issued.

Urgent applications shall be dealt with by a duty judge in terms of the issuing of directives. In opposed applications, parties shall file their heads of argument electronically, and endeavour to reach agreement dispensing oral argument.

Matters where the parties have been unable to reach consensus, or matters where the presiding judge directs that argument be presented, shall be heard by way of video conferencing. 

So far a number of challenges to the constitutionality of the National State of Disaster and its regulations have been dismissed. Economic devastation is escalating. It remains a balancing of rights. 

Zenobia Du Toit is a director of Cape Town-based Miller du Toit Cloete

This article is part of the Family Law During Lockdown series. Click here for more commentary on how courts around the world are adapting to the impact of the pandemic.

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