A recent judgement by Brauckmann AJ (“the presiding judge”) in Dr JS Moroka Municipality and others v Kubheka  ZAMPMHC 3 addressed and condemned specific conduct of legal practitioners amid a state of emergency. However, it is argued that the presiding judge went too far with concerns (or obiter dictum).
The merits of the matter were dealt with as follows: The applicants applied for a rule nisi because the parties requested an opportunity to discuss the matter amongst each other. An order was granted that the first respondent should vacate the premises of the second applicant with immediate effect on 21 March 2020 and the return date of the rule nisi was set for 07 May 2020.
The presiding judge’s obiter dictum was presented in a separate judgement to the application. According to the obiter dictum, the majority of the legal practitioners submitted incorrect or no permits at all as required by the Regulations (“lockdown regulations”) enacted in terms of section 27 of the Disaster Management Act 52 of 2002 (“DMA”) and directives of the honourable Minister of Justice and Correctional Services, Ronald Lamola. One legal practitioner had an acceptable permit.
After careful discussion of the law governing the permits and/or identification required from essential service workers, especially legal practitioners, the presiding judge expressed that the conduct of the nine legal practitioners who failed to comply with the regulations was reckless and that they “defied the regulations”. As punishment for non-compliance with the lockdown regulations, the presiding judge stripped some of the legal practitioners of their fees. The legal practitioners who did not have any permits at all were granted an opportunity to acquire same.
The court noted further that the behaviour of these legal practitioners could or is potentially more than professional misconduct, and constituted a criminal offence as well. It explains why the matter was referred to the Legal Practice Council (“LPC”), but not why the legal practitioners were refused their fees.
The question I have is, did the presiding judge not overstep his or her autjority with the pronouncement on fees and to punish the legal practitioners prematurely? In my view, the court went too far. There was no complaint against the legal practitioners and even worse, they were not given an opportunity to present their case in respect to the issue of permits. The presiding judge failed to act impartially and decided on an issue of law not presented before the court. The court acted in the interest of justice to refer the matter to the LPC, which will investigate and take further steps if it finds it necessary to do so. However, the presiding judge erred in making a judgement with respect to permits.
In The Daily Maverick, Prof. de Vos expressed his opinion on this judgement and stated that the court’s endorsement of the constitutionality of the regulations goes too far even for an obiter. The main argument I gather from the Professor’s text is that it is not enough that the regulations intended to slow and/or suppress the spread of Covid-19 and are necessary, if they are not compliant with the Constitution. He suggests that each regulation should be assessed separately to determine if it is justifiable or whether it goes too far. I do not agree. The rights in the Constitution are not absolute and as indicated in section 36(2) of the Constitution, rights may be limited to the extent that they are reasonable and justifiable in an open and democratic society based on the democratic values supported by the Constitution.
We agree however that the presiding judge was correct to take issue with these legal practitioners. They should not have tried to mislead the court and the presiding judge was correct to refer the matter to the LPC. However, the court’s entire approach is extreme. Legal practitioners are gate keepers of our law and if we are going to promote the interest of justice, we need to ensure we do not limit their service rendering in an unreasonable way.
In terms of the directives, the courts can sit urgent court proceedings only. However, even if the court considers the matter urgent, the legal practitioner is required to produce their admission certificate and/or a permit issued by a practicing Provincial LPC’s Director in terms of regulation 10(a)(i) to (v), who is required to appear in the matter as well. I am conflicted by this. Why is the admission certificate not entirely enough identification? Why is a court’s decision that a matter is urgent not enough to grant a legal practitioner travelling rights to attend and execute their mandate? In my opinion, the urgency of the matter is delayed by this process, limiting the legal practitioner from preparing for the merits of the matter and planning their traveling. Are these directives consistent with the interest of justice?
The administration of justice in South Africa is a developing system and our courts have done well over the past 26 years. But there aren’t enough cases that address the everyday lives of the marginalised communities because these communities do not have funds to take matters to court. This is where we rely on our academia to address these issues. Instead, the only trend we see is an attack on legal practitioners and attempts to strip this profession of its business element.
Legal practitioners are not above the law and those who behave as if they are, should be referred to the LPC for an investigation and further action where applicable. However, we should be careful not to limit the options of the gate keepers of our law and giving the courts too much power.