Covid - 19 update Measures affecting access to South African courts and regulatory bodies - Allen & Overy
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Covid – 19 update Measures affecting access to South African courts and regulatory bodies Last updated 15/05/20 In the light of the Covid-19 pandemic, South Africa has implemented various measures including a nationwide lockdown, which commenced on 26 March 2020. These measures restrict access to courts, competition authorities and other public regulatory bodies such as the CIPC, and SARS. Effective 1 May 2020, the Government embarked on a risk-based strategy for the gradual and phased recovery of economic activity, based on an assessment of the infection rate and the capacity of the health system. In terms of the strategy, there are five coronavirus risk alert levels to contain the spread of the virus, measured from Alert Level 1 (being the least restrictive, and under which usual activity can resume with precautions) to Alert Level 5 (being the hard lockdown and cessation of all but designated essential services). South Africa commenced Alert Level 4 on 1 May 2020, meaning that some activity is allowed to resume, subject to extreme precautions. Over time, different alert levels may be assigned to individual provinces and/or districts. Under Level 4, court and administrative processes continue and/or resume, provided they are in respect of urgent or permitted services. General accessibility continues to be limited and may affect ongoing business and enforcement proceedings for the duration of Alert Level 4. This Q&A captures the position on the operation of the high courts in Gauteng, KwaZulu – Natal and the Western Cape, as it pertains to civil matters and administrative bodies under Alert Level 4 of the lockdown. Certain information may become outdated in the coming weeks and potentially months, as the lockdown progresses. © Allen & Overy LLP 2020 allenovery.com
Covid – 19 update | 2020
Courts
1. Which courts are affected? 3. Are any of the dates for serving court processes suspended?
The Covid-19 measures affect all court precincts and court buildings. No, pleadings, notices, affidavits and other court processes (including heads
of argument) can be delivered electronically during Level 4 restrictions. The
2. Where can I find guidance on the impact on court operations?
Superior Courts Act, 2013 does not clothe a head of court with the power to
Government notices and guidance can be found on the South African declare the national lockdown period to be dies non. However, directives in
Government website here: www.gov.za/document as well as the judiciary Kwa-Zulu Natal previously stipulated that the period 27 March 2020 to 30
website here: www.judiciary.org.za. April 2020, was to be regarded as dies non for the purposes of the Rules of
The directions published by the Minister of Justice and Correctional Court and any directives for the filing of pleadings, affidavits or notices in
Services, as well as those issued by the Chief Justice Mogoeng Mogoeng, that division of the High Court.
provide general guidance on the impact on court operations. These 4. What is the general restriction on access to court?
directions also contemplate that parties to a civil dispute consider alternative
Access to courtrooms, courthouses and justice service points is restricted to
dispute resolution mechanisms to resolve the dispute and permits parties:
persons with a material interest in a case, e.g. litigants, legal practitioners,
to agree to refer the dispute to mediation (either before or after witnesses and members of the media. The nature of the case itself must
the commencement of litigation but before the granting of also fall within the ambit of the following 'permitted services'. Whilst the
judgment by the court); or execution of warrants of execution, including evictions and all attachments
and removal of property remain suspended under Alert Level 4, in respect of
to agree to refer the dispute to arbitration (before the
civil law proceedings, the following are included as 'permitted services'
commencement of litigation).
under Alert Level 4:
In addition, the Heads of Courts have issued directives to supplement and
civil matters dealt with online, telephonically or in writing,
give effect to the general guidance. The directives issued in each of the
High Court Divisions differ slightly on procedural issues but there are urgent motion applications,
common themes across the major metropolitan areas. The Constitutional
urgent civil trials including Covid-19 related cases,
Court, Supreme Court of Appeal and Regional courts may also have specific
procedural considerations, which are not included in this overview. alternative dispute resolution mechanisms,
taxations,
debt review applications and trials,
2 © Allen & Overy LLP 2020COVID – 19 update | 2020
divorce proceedings, including Rule 43 applications in the High 5. Are the Offices of the Master of the High Court open?
Court and Rule 58 applications in the Regional Court, as well as
Yes, although only certain services are available. The Offices of the Master
uncontested interlocutory applications and uncontested trials,
of the High Court are providing the following prescribed services under Alert
issuing of all court process and proceedings and filing of papers Level 4 restrictions:
relevant to pending proceedings,
reporting and issuing of letters of appointment in all deceased
applications for leave to appeal, appeals and reviews, estate(s) matters,
all uncontested civil actions or motions, reporting and issuing of appointments in all Insolvency matters,
ex parte applications, lodgment of requisitions by way of e-mail,
endorsement of powers of attorney; and examination of liquidation and distribution accounts in all
in relation to legal practitioners' permitted services also include: deceased estate(s) matters lodged by e-mail,
o professional legal work on litigation which is essential to be examination of liquidation and distribution accounts in all
brought or enrolled for hearing, or attended to during Alert Insolvency matters lodged by e-mail,
Level 4; reporting and issuing appointments in only urgent Trust matters
o administrative and preparatory functions such as for the benefit of Covid-19 relief measures lodged by e-mail,
consultations, commissioning of affidavits, filing of court reporting and issuing appointments in only urgent curatorship
papers at court, accessing documents and utilise matters lodged by email,
equipment in the office;
receiving of applications and payments of funds from the
o administrative work by a legal practitioner to ensure
Guardian’s Fund, and
compliance with legal obligations which it is essential be
complied with during Alert Level 4; and issuing of letters of executorship and endorsement of powers of
attorney.
o any other professional legal work by a legal practitioner
which, if not performed during Alert Level 4, is likely to
result in substantial injustice or severe prejudice to an
affected party.
© Allen & Overy LLP 2020 allenovery.com6. How are specific court processes impacted by Alert Level 4 restrictions?
Generally, only permitted services (as listed above in respect of civil law proceedings) are permitted during Level 4 restrictions. Permitted services
Can we launch High Court proceedings that are not urgent?
include, but are not limited to, urgent proceedings. Access to physical court buildings remains limited and a number of High Courts restrict issuing
of court process and physical hearings to very limited circumstances where it cannot be achieved through electronic means.
In Gauteng, the latest guidance only makes
provision for the issuing of new case numbers in
urgent matters. In the absence of urgency, only
proceedings relevant to existing matters (e.g.
interlocutory proceedings, applications for leave
to appeal, appeals and reviews) and otherwise
uncontested matters (e.g. ex parte applications) In the Western Cape, the issuing of all In KwaZulu-Natal, the Registrar's office is
are currently capable of being issued. If the combined, provisional summons and open to issue new processes and filing of
relevant matter is registered on the court's applications is suspended, except for documents. In respect of the issuing of bulk
document management system, CaseLines, the urgent applications (including matters processes, the legal practitioners will be
process/document may be uploaded there. If the relating to Covid-19) and in respect of civil required to leave these at the general office
matter is not registered on CaseLines, the matters where the debt claimed will with the necessary email and mobile contact
process/document may be sent via email to the prescribe during lockdown or there is details and the Registrar will thereafter make
relevant parties entitled to receive such reasonable apprehension that the debt contact for collection of the issued processes
process/document and filed electronically by will prescribe. on a suitable date and time.
email to designated email addresses. The issue
of prescribing claims has been removed from the
consolidated directive and parties are advised to
contact the relevant Court for guidance on the
issuing of such processes, on a case by case
basis.
© Allen & Overy LLP 2020 allenovery.comCOVID – 19 update | 2020
What is the impact on pending court
In KwaZulu-Natal, generally speaking,
civil trials will not proceed during the
lockdown period and have not been
dates for civil trials?
In Gauteng, trial matters enrolled from 4 May to 28 reallocated. Instead, (a) all trials set
June 2020 remain enrolled on those dates. Matters down for hearing during the lockdown
that were removed from the roll during the initial In Western Cape, the Judge President may (formally) be removed from the
period of the national lockdown have been will determine which of the trials already trial roll with the consent of all the
reallocated to dates from 22 June to 3 July 2020. In set down until 28 June 2020 will be parties; or (b) a litigant who deems it
Pretoria, previously enrolled trials have been assigned for hearing, if any. urgent that the trial must proceed
reallocated to dates in the period from 13 July to during the lockdown period must
17 July. communicate with the Judge President
or other designated person, who will
direct the further conduct of the matter,
in his/her discretion.
© Allen & Overy LLP 2020 allenovery.comCovid – 19 update | 2020
Generally, matters that remain enrolled and proceed to hearing during Alert Level 4 will do so via video conferencing or other electronic means.
What is the impact on pending
Litigants may also agree to remove matters from the roll or elect to have issues decided on the papers.
dates for motion court
proceedings that are
In KwaZulu-Natal, Litigants may elect
not urgent?
to have issues decided on the papers,
In Gauteng, matters enrolled from 20 April to 28 June In the Western Cape, the Judge including further written submissions. If
2020 (whether opposed, unopposed or interlocutory) President will determine which of the an oral hearing is required, a physical
remain enrolled on those dates. The case will, opposed motions already set down until hearing may be convened, the matter
however, only be heard if the matter is uploaded on 28 June 2020 will be assigned for may be heard via teleconferencing or
CaseLines (but an exemption may be sought). hearing, if any. electronic means, or the matter may be
adjourned, depending on the directions
of the presiding judge.
In Gauteng, appeals in Johannesburg that were
transferred to 15 June to 24 June remain so enrolled,
How are civil appeals
together with all other appeals on the roll from 20
April. Parties may agree to remove the matter from In the Western Cape, all allocated In KwaZulu-Natal, appeals set down
impacted?
the roll. Appeals set down will be dealt with without appeals and applications for leave to from 4 May 2020, will proceed at times
an oral hearing in open court. Papers may be appeal will be dealt with without an oral as reflected on the appeal roll. The
supplemented, process is exchanged via CaseLines hearing in open court. Oral hearings manner in which applications for leave
or email, and oral hearings may be dealt with by video may be dealt with by video to appeal are to be dealt with is at the
conferencing, if necessary. The directive does not conferencing, if necessary. discretion of individual judges.
specify the position on applications for leave to
appeal but notionally, the same procedure would
likely apply.
6 © Allen & Overy LLP 2020COVID – 19 update | 2020
In Gauteng, rules nisi returnable during the lockdown
period, and which were enrolled on the unopposed
In KwaZulu-Natal, rule nisi matters in
What about rule nisi matters?
court roll, will be extended to a date after the
In the Western Cape, rule nisi matters which the return date falls within the
lockdown period. If the matter has not been enrolled
returnable during the lockdown lockdown period were (seemingly by
on the unopposed court roll, it may be enrolled in the
(including eviction matters) should be virtue of the relevant directive)
urgent court in order that the rule be extended to a
identified and arrangements made with extended until confirmed or
date after the lockdown period. It appears that
the judge on motion court duty or recess discharged. The latest practice
extensions will not be automatic, and will instead be
duty to extend the rule nisi dates to directives don't specifically deal with
granted by either the unopposed motion court judge
beyond this period. Where this cannot rule nisi matters with dates returnable
or the urgent court judge, as the case may be. Whilst
be achieved the duty judge concerned during Alert Level 4 restrictions, and
it is unclear what constitutes "the lockdown period"
must be approached for appropriate the court registrar should be
for purposes of determining an extended return date,
directives. approached for directions on a case by
the earliest possible date is likely to be after the
case basis.
second court term ends on 28 June, in line with the
operative period for the directive.
judgment in the case
of a debt or liquiated
What about default
In Gauteng, whilst the directive itself does not
specifically deal with default judgment, the note In the Western Cape, new applications In KwaZulu-Natal, whilst the directives
demand?
accompanying the directive provides designated to the Registrar for default judgment do not specifically deal with default
email addresses for requests to the Registrar for the have been suspended since 25 March judgment, it is notionally possible to
creation of a case. Whilst it is possible to file process 2020. The position remained bring such applications if the matter is
via CaseLines, it is unclear when the outcome of such unchanged in the latest directive. deemed urgent.
applications will be received.
© Allen & Overy LLP 2020 allenovery.comCovid – 19 update | 2020
Regulatory bodies
1. How has access to the South African Revenue Services (SARS) Disputes: According to a notice from the Chairperson: Customs
been impacted? and Excise National Appeals, the days during the period 27 March
Access: SARS has advised taxpayers and tax practitioners to use to 16 April 2020 will not be taken into account in the calculation of
online channels such as eFiling, the SARS MobiApp and e@syFile the days or the period for purposes of an appeal due under the
to interact with SARS. SARS has provided dedicated email Customs Act. No updated notice had, as at 15 May 2020, been
addresses for this purpose on their website. Onsite visits to SARS released relating to the initial extension of the lockdown to 30 April
offices are possible, but an appointment must be made on the 2020 or the subsequent shift to Alert Level 4. SARS has not given
SARS website, and SARS has cautioned customers to please a similar notice for objections and appeals under the other Tax
remember the lockdown restrictions that are in place when legislation. Where a taxpayer is unable to comply with a prescribed
travelling to a SARS branch. period during which steps in the dispute process must be instituted
due to the lockdown, it would likely constitute an exceptional
Submission of returns: There is no relief for the submission of
circumstance.
tax returns. Taxpayers are required to ensure that returns are
submitted on or before the due dates. Customs measures: SARS has increased its capacity at ports of
entry. Customs inspections will now take place in respect of all
Deferral of Payment of Taxes: Larger businesses (with a gross
cargo and will no longer be limited only to essential cargo. SARS
income of more than R100 million) that aren't able to make
will, however, still prioritise essential cargo for inspection in order
payment due to the COVID-19 disaster, may apply to defer tax
to avoid any undue disruption in respect of the supply of critical
payments without incurring penalties by emailing SARS
goods. Extensive use will be made of documentary inspections
on COVID19IPAaboveR100m@sars.gov.za. Small businesses
and, where possible, non-intrusive examination methods will be
(with a gross income of less than ZAR 100 million) in the same
used.
position are to email COVID19IPAbelowR100m@sars.gov.za.
8 © Allen & Overy LLP 2020COVID – 19 update | 2020
2. How has access to the Companies and Intellectual Property and co-operatives, including call centre, self service centres
Commission (CIPC) been impacted? and the online enquiry system.
Leaving aside the legality of the notices published by the CIPC in this respect, o As from 1 April until 30 April 2020, only fully automated
which are questionable, CIPC has also sought to provide for specific measures services were made available to the public.
on the extension of filing periods and / or access to CIPC services over the course
o CIPC recommenced services on 6 May 2020.
of the lockdown (including the shift to Alert Level 4).
o Filing Annual Returns: If the filing period falls within the
In relation to Patents, Designs, Copyright & Trade Marks:
national lockdown period, such filing period is extended until
o The dates from 25 March to 30 April 2020 were regarded as two weeks after the national lockdown ceases or
dies non for purposes of the (a) The Trade Marks Act; (b) communicated otherwise by CIPC. If the filing period falls
the Patents Act; (c) Design Act (d) Copyright Act; and (e) outside of this period, the normal prescribed filing period are
Registration of Copyright in Cinematograph Film Act. CIPC applicable. This extension of the filing period has the effect
was closed to the public during this time, (including the call of deferring penalties, compliance checklist and preparation
centre and electronic query system). of annual financial statements.
o Responses to official communications from CIPC, o Deregistration: CIPC will not take any action to place
documents relating to extensions of any time periods (e.g.: companies and close corporations into deregistration for the
prosecution and opposition/cancellation time periods in failure to lodge Annual Returns or to finally deregister any
respect of trade marks); documents relating to legal company or close corporation that is currently in
proceedings (e.g.: affidavits in opposition/cancellation deregistration process for non-compliance with Annual
proceedings in respect of trade marks), etc. that fell due Returns, until further notice.
during the dies non period, were extended and fell due on 1
o Name reservations: All name reservations that falls within
May 2020.
the lockdown period will automatically be extended until
In relation to Companies, Close Corporations and Co-operatives: two weeks after the lockdown period ceases, or CIPC
communicates otherwise.
o From 16h00 on 24 March until 1 April 2020, CIPC closed
down all services relating to companies, close corporations o Business rescue: A general extension was provided for
business rescue proceedings that had commenced, but
© Allen & Overy LLP 2020 allenovery.comCovid – 19 update | 2020
which did not complete the procedure prior to the email address) would be processed by CIPC to reflect
commencement of the lockdown period commencing on 26 the date on which it was filed.
March 2020, and for proceedings that had not yet
Business rescue filings have resumed under Alert
commenced in terms of section 129 of the Companies Act,
Level 4 restrictions, albeit restricted to electronic filing
2008, dies non applied.
through CIPC designated channels.
The effect of this direction was to "suspend" the time
o The Commission will not invoke its powers under
periods relating to business rescue proceedings.
section 22 of the Companies Act, 2008 in the case of a
On 22 April 2020, the South African Restructuring and company which is temporarily insolvent and still carrying on
Insolvency Proceedings issued a practice note to its business or trading. This is only applicable where the
members expressing the following views: (i) the CIPC Commission has reason to believe that the insolvency is due
cannot refuse to accept documents filed electronically to business conditions, which were caused by the Covid-19
by email in respect of the commencement of business pandemic. Notably, the effect of the Practice Note is simply
rescue proceedings and any ancillary documents that to provide a practical reprieve for both companies (from the
are required to be filed, (ii) the commencement date perspective of compliance with a notice received from CIPC)
for business rescue proceedings will be the date that and the CIPC itself (from an administrative perspective)
the relevant resolution is filed electronically with the during the Covid-19 pandemic, where it is anticipated that a
CIPC, and (iii) business rescue practitioners must number of businesses may carry on business or trade in
continue to adhere to the time periods stipulated in insolvent circumstances. The notice does not prohibit the
the Companies Act, 2008. company itself/creditors from prosecuting claim(s) for
damages related to specifically prohibited conduct.
On 6 May 2020, under Notice 23 of 2020, CIPC
advised business rescue applications filed between
24 March and 30 April 2020 would need to be re-
submitted. It then issued a further notice stating inter
alia voluntary business rescue applications filed in the
prescribed manner between 24 March and 30 April
2020 (notionally by email to the designated CIPC
10 © Allen & Overy LLP 2020COVID – 19 update | 2020
3. Are the Competition Authorities still operating?
Yes, in particular: The Competition Tribunal:
The Competition Commission has significantly scaled down o Filings must be made electronically through a designated
operations but has undertaken to prioritise all Covid-19 complaints email address.
and the enforcement of the regulations gazetted by the Minister of
o Complaint referrals already enrolled have been postponed
Trade and Industry. For the duration of the lockdown, the
indefinitely (as are pre-hearing and hearings relating to
Commission has discouraged the filing of complaints unrelated to
interlocutory proceedings. No new matters can be set down
Covid-19 as well as all merger transactions except those involving
(including any consent orders or settlement agreements).
failing firms or those firms in distress. Complaints related to abuses
Any urgent matters will be set down by arrangement with the
of dominance or such exploitative practices relating to Covid-19
parties.
shall be handled between the Commission and the National
Consumer Commission through a dedicated team and the Hearings in Respect of Mergers:
designated electronic channels. o Phase 1 mergers (unopposed, non-complex mergers as
A special procedure has been implemented for the referral and classified by the Commission) will be heard in chambers by
determination of excessive pricing complaints relating to COVID- conference call;
19. Such complaints may be dealt with on an urgent basis, with o Phase 2 mergers (classified as complex but unopposed by
electronic filing of papers on an expedited timeline. Such the Commission) will also be heard by conference call,
complaints are expected to be heard by the Tribunal within 6 days although parties may be required to make themselves
of receipt of the complaint. available for hearing via teleconference.
o Phase 3 mergers (very complex mergers that are opposed,
as classified by the Commission) will not be set down during
the lockdown period.
© Allen & Overy LLP 2020 allenovery.comCOVID – 19 update | 2020 Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. Allen & Overy LLP is a limited liability partnership registered in England and Wales with registered number OC306763. Allen & Overy LLP is authorised and regulated by the Solicitors Regulation Authority of England and Wales. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP’s affiliated undertakings. A list of the members of Allen & Overy LLP and of the non-members who are designated as partners is open to inspection at our registered office at One Bishops Square, London E1 6AD. Allen & Overy is an international legal practice with approximately 5,500 people, including some 550 partners, working in more than 40 offices worldwide. A current list of Allen & Overy offices is available at allenovery.com/locations. © Allen & Overy LLP 2020. This document is for general guidance only and does not constitute definitive advice. © Allen & Overy LLP 2020 allenovery.com
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