On 31 March 2020, the High Court of South Africa, Mpumalanga Division, Middelburg (“Mpumalanga High Court“) meted out a severe reprimand to several legal practitioners who travelled from Gauteng Province to the Mpumalanga High Court in Mpumalanga Province during the lockdown period without the necessary lockdown permits. Acting Judge Brauckmann considered the lockdown regulations and the lockdown directives and decided that by travelling between these Provinces without the lockdown permits, the legal practitioners acted recklessly, possibly committed a criminal offence, were contemptuous of the Court, were possibly guilty of unprofessional conduct, set a bad example for the South African citizens and should not charge their clients for preparation, travelling and appearing at the Mpumalanga High Court on 31 March 2020.

What happened?

The judgment which is the subject of this note is The Administrator of Dr JS Moroka Municipality v Kubheka [(1170/20) [2020] ZAMPMHC 3 (3 April 2020)] (“Dr JS Moroka Municipality Matter“). The Administrator of the Dr JS Moroka Municipality (“Municipality“) and other related parties approached the Mpumalanga High Court on an urgent basis to ensure that the residents of the Municipality continued to receive basic services, including portable water, notwithstanding the ongoing litigation involving the Municipality and Mr Kubheka, the Municipal Manager. Notwithstanding the lockdown, the Mpumalanga High Court agreed to entertain the matter on an urgent basis because “water is essential to remain hygienic, and avoid infection by the novel Coronavirus.”

The arguments on the merits of the case were averted by the legal practitioners through discussing the issues informally and agreeing to an amicable arrangement. That arrangement was made an order of the Mpumalanga High Court.

How did COVID-19 issues become central to the Dr JS Moroka Municipality Matter?

The hearing of the Dr JS Moroka Municipality Matter on 31 March 2020 was preceded by a flurry of developments relating to the novel coronavirus (“COVID-19“) that is ravaging the world.

On 15 March 2020, the Minister of Co-Operative Governance and Traditional Affairs (“Minister“) declared a national state of disaster in terms of the Disaster Management Act, Act, No. 57 of 2002, as amended (“DMA“) having regard to the potential magnitude and severity of COVID-19.

On 18 March 2020, the Minister made regulations in terms of the DMA to prevent, alleviate, constrain or minimise the effects of COVID-19. 

On 25 March 2020, the Minister amended the regulations made on 18 March 2020 and introduced further stringent measures (“Lockdown Regulations“) to combat COVID-19, including restricting –

  • the movement of persons between 26 March 2020 and 16 April 2020 (“Lockdown Period“), unless for the purposes of performing an essential service, obtaining an essential service or goods, collecting a social grant or seeking an emergency, life-saving or chronic medical attention; and
  • the movement of persons between Provinces and between Metropolitan and District areas.

On 26 March 2020, the Minister of Justice and Correctional Services issued directives (“Lockdown Directives“) regulating the functioning of Courts during the Lockdown Period, prescribing that only urgent matters and essential services would be rendered in Courts and prescribing that legal practitioners could only travel during the Lockdown Period if they have an urgent matter or are rendering an essential service, in which event they must procure a permit (“Lockdown Permit“) from the Provincial Legal Practice Council.

On 31 March 2020, Acting Judge Brauckmann (“Brauckmann AJ“), asked the legal representatives of the parties to produce their Lockdown Permits. Some produced documents which did not comply with the Lockdown Directives; others failed to produce anything.

What did the Court say about COVID-19 and the purpose of the Lockdown Regulations and the Lockdown Directives ?

Brauckmann AJ said the following about COVID-19 and the purpose of the Lockdown Regulations and the Lockdown Directives –

  • COVID-19 had, and is still having, a devastating effect on our country’s economy and human capital.  It will have far reaching ramifications on our country in the future as well.“;
  • [T]he present extreme circumstances caused by COVID-19, justifies (sic) the regulations and directives.  It is (is) justifiable and reasonable in an open democratic society.”;
  • The [Lockdown] regulations were made to keep South African citizens at home and safe for at least 21 days in order to prevent the uncontrolled spread of the viral infection.  Should the citizens not heed the call, the pandemic might reach such proportions that South Africa’s health system would not be able to contain the spread thereof, nor treat those infected properly. Italy, and Spain are examples of countries where the pandemic ravaged the population. These are so-called first world countries with health care systems that are of very high standards.  As can be gleaned from the deaths in these countries, and all over the world, the measures implemented by our Government are not only essential, but critical, not only for the Governments’ sake but for every individual’s safety and health.” [Emphasis added]; and
  • The ratio behind the regulations prohibiting movements across provincial borders makes perfect sense.  The Northern Cape is the province least affected by COVID-19.  By preventing Gauteng residents from travelling to Northern Cape or Mpumalanga the spread of COVID-19 is controlled.  If no Gauteng resident travels across the provincial border to Mpumalanga, the possibility of the spread of the Corona virus from the Gauteng citizens to the residents Mpumalanga is eliminated. The same can be said about travelling between Metropolitans and country districts.” [Emphasis added]

What did the Court say about the legal practitioners who travelled during the Lockdown Period without the Lockdown Permits?

Brauckmann AJ had some very harsh words for the legal practitioners; he said–

  • The practitioners … paid no attention to, alternatively ignored, alternatively failed to understand the regulations, read with the directives” [Emphasis added];
  • Breaching the provisions of the regulations, as stated earlier, amounts to a criminal offence. I am also of the opinion that Mr Zondo ’s conduct was unprofessional, seen in light of the code of conduct of legal practitioners.” [Emphasis added];
  • After a practitioner’s admission as such by a court, an oath is taken by the practitioner in terms whereof he/she swears allegiance, in court, to the RSA and swears to uphold the laws of the Republic of South Africa.  He/she must remain acquainted and uphold the laws and regulations which includes the DMA and the current lockdown regulations and directives.” [Emphasis added];
  • Legal practitioners, as members an honourable profession that interprets and applies the laws, must set an example to other citizens, and dare not flout with it (sic). They must be seen to adhere to the law.  Any breach of the law, and regulations in an open fashion will cause the general public to lose faith in the legal profession and system” [Emphasis added];
  • the legal practitioners without the Lockdown Permits “…not only acted recklessly by travelling across the [Provincial] border in breach of the regulations and openly defied the regulations and directives in terms of the DMA.  This amounts to contemptuous conduct and the court cannot be seen to approve it. [Emphasis added];
  • Although the legal practitioners render an essential service, they are still subject to the regulations issued by the Minister…  By blatantly ignoring them or acting without proper attention being paid to the Regulations and Directives the practitioners are not doing themselves, nor the citizens of the Republic any favours.” [Emphasis added];
  • One would expect legal practitioners to study the relevant provisions regulating their conduct under the current exceptional circumstances before proceeding to court.  The trying times that we live in affects everyone, and although one is sympathetic to the inconvenience that is being experienced by, amongst others, the legal practitioners, the regulations and directives are there for the good of everyone.” [Emphasis added]; and
  • each legal practitioner that did not have a valid Lockdown Permit “…may not charge his client, alternatively instructing attorneys’ any fees or expenses in respect of preparation, travelling to, and from court, and attending court in Middelburg on 31 March 2020.

The Registrar of the Mpumalanga High Court was also directed to send a copy of the judgment in the Dr JS Moroka Municipality Matter to the Directors of the Mpumalanga and Gauteng Legal Practice Councils for the purposes of investigation of the conduct of the legal practitioners for unprofessional conduct.

We highlight that due to the extraordinary nature of the judgment, on 7 April 2020, two of the affected legal practitioners launched an application for leave to appeal the judgment by Brauckmann AJ directly to the Supreme Court of Appeal of South Africa (the second highest Court in South Africa) on, among others, the basis that Brauckmann AJ–

  • Failed to afford them [the legal practitioners] a hearing before making an adverse finding and orders against them thus breaching their basic constitutional right to a fair trial and the simple tenet of natural justice.“; [Emphasis added];
  • Defamed the legal practitioners, “acted in bad faith, and in breach of his judicial oath of office“;
  • He solely intended to damage the applicants and ruin their reputation as advocate and attorney respectively and as officers of the Court.” [Emphasis added];
  • Delivered a judgment which attacked the integrity of the applicants and other practitioners when he was not called upon to do so, and when none of the issues and findings made by him were argued before him.”;
  • Impugned the integrity and reputation of the applicants [the legal practitioners] and other legal practitioners without any legal and factual basis.”; [Emphasis added]
  • …[W]as malicious in making the findings against the applicants as there was not single evidence before him to make such findings.”; [Emphasis added]
  • Failed to understand the basic principles of the law, and had no appreciation of the legal procedure and substantive law as evidenced by his findings.”; [Emphasis added] and
  • Demonstrated exceptional levels of incompetence and irrationality in the legal conclusions he reached in respect of the applicants, other legal practitioners and a flawed interpretation of the regulations.” [Emphasis added]

What does this mean for me?

The following are practical lessons from the Dr JS Moroka Municipality Matter for companies rendering essential services during the Lockdown Period–

  • each company must understand the full parameters of the Lockdown Directives and how they affect its business; 
  • if a company is involved in the provision of essential services or essential goods, that company must procure that it and its employees have all the necessary permits; 
  • those companies who contravene the Lockdown Regulations, including, without limitation, through registering as essential service providers when they are not, will face the full wrath of the judicial officers if caught;
  • the multiplicity of documents and related amendments regulating the Lockdown Period and the lack of clarity in the drafting of these documents will not excuse non-compliance; companies must seek legal advice; and 
  • there is acknowledgment that the Lockdown Period is disrupting the normal operation of businesses; however, this is not an excuse for non-compliance with the Lockdown Regulations which serve the public interest.