Access to justice is at stake

It would be remiss of South Africans to ignore the issues raised by legal practitioners as they try to navigate the courts during the national lockdown. While the financial effect on advocates and attorneys during the lockdown is severe, it mirrors the economic devastation in most other industries as the government closed most of the economy to curb the spread of the novel coronavirus.

A recent survey of 549 legal practitioners by the Goldfields Attorneys Association found that 63% lost more than 60% of their income in April. The situation is dire and has a domino effect on them paying their creditors as well as salaries to their staff.

While it would be easy to just focus on the economic impact faced by these professionals, who ordinarily would be seen as part of the more affluent section of SA’s unequal society, their hardships point to an even bigger concern: the lockdown has hurt more than lawyers’ pockets; access to justice itself is at stake.

The survey found that 84.5% of the attorneys and advocates surveyed said the lockdown regulations “severely” affected their ability to provide legal services to the public.

In SA’s democracy, the courts are the guardians of the constitution, our highest law. This role is arguably even more important now as South Africans try to navigate an uncertain world in which their freedoms are severely curtailed and legal challenges are increasing almost on a daily basis.

It is therefore of extreme concern that one of the main issues raised by legal practitioners in a webinar with deputy justice minister John Jeffery was about the inconsistencies in the directions and regulations given by justice minister Ronald Lamola, chief justice Mogoeng Mogoeng and the various heads of court.

It was a concern echoed by the Law Society of SA and the General Council of the Bar, as the approaches by the different courts created confusion for those who have to work in them on a daily basis. The cases that can be heard have been severely restricted, limiting the ability of practitioners to work and earn fees. While some courts have embraced technology to ensure the work continues, others have taken a more conservative approach in how the work is done, creating confusion as to who can work when. If the legal practitioners are confused, it surely indicates that there is a big problem at hand.

The tension between the judiciary and the executive over who issues which directions in terms of the functioning of the courts is also something that has to be addressed, because there is no space for egos when it comes to the access to justice South Africans deserve.

While the chief justice has issued directives that give guidelines on how the courts should function, the authority he delegated to the different heads of courts has resulted in an inconsistent approach to how they should function.

The call for uniformity of the regulations from the legal fraternity should therefore be taken seriously by Mogoeng and Lamola. Mogoeng specifically has to take control of this confusing situation as head of the judiciary, and truly lead it.

It is not good enough to just allow each head of court to do what they deem fit with filling in the details. In a crisis, leadership is critical, and he has to ensure all of the judges are on the same page in terms of how they operate.

There has to be uniformity in the lockdown chaos, especially given that the measures in place for Covid-19 will be with us for the foreseeable future.

There has to be a clear way of functioning in this new norm, which includes getting matters that have been put on hold during the lockdown before a judge. This will not only help legal practitioners get much-needed work, but will benefit all South Africans who require access to justice.

Justice delayed is, after all, justice denied — even during a global pandemic.

MOGOENG HAS TO TAKE CONTROL OF THIS CONFUSING SITUATION AS HEAD OF THE JUDICIARY, AND TRULY LEAD IT