Quick reference Q&A Covid-19 measures impacting courts and other public bodies
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Quick reference Q&A Covid-19 measures impacting courts and other public bodies In the light of the Covid-19 pandemic, South Africa has implemented various measures in response to the 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. Whilst designated “urgent and essential” court and administrative processes are continuing, accessibility (in general) is limited, and will impact on ongoing business and enforcement proceedings for the duration of the national Updated 6 April 2020 lockdown (expected to end at mid-night on 16 April 2020, unless extended). This document provides a short Q&A summarising the key restrictions applicable to the operation of various courts and administrative bodies for the duration of the lockdown in South Africa. Certain information may become outdated, as the lockdown progresses. © Allen & Overy LLP 2020
2. Can I launch proceedings which aren't urgent during the lock
1. What is the general restriction on access to courts? period and what about prescription?
‒ As a designated essential service courts remain open for the filing of ‒ Whilst the various divisions of the High Courts are only allowing the
papers and hearing of urgent applications or matters related to issuing of urgent matters, the approach varies between the High
violations of liberty, domestic violence, maintenance and other Courts, eg.:
matters involving children. ‒ Gauteng: Where matters are prescribing during the lockdown
‒ Entry into courts and court precincts is only allowed in respect of period, parties are permitted to send the relevant process to
"urgent and essential" court applications and hearings for matters designated email addresses, for the attention of the Court staff
which, if not enrolled during the period of the lockdown, will lead to after the lockdown period. The date of transmission of the email
substantial injustice. will be regarded as the date of issuing of the process.
‒ What would constitute "substantial injustice" in a commercial context ‒ Cape Town: Under the latest directives, the issuing of all
remains unclear, save to the extent that it may relate to the combined, provisional summons and applications (which are not
interpretation and/or implementation of any regulations or directives urgent) were expressly suspended. The practice directive does
published pursuant to the Disaster Management Act, 2002. not cater for matters which are deemed to be prescribing during
‒ The services of the Master of the High Court has similarly been the lock down period – although this can likely still be issued at
restricted and is now (for the duration of the lockdown) limited to Court and delivered in the ordinary course, under the auspices of
specific functions prescribed under the Administration of Estates Act, the Government Notice which permits the service of process
1965. No provision is made in relation to the services necessary / relating to claims which are prescribing.
pertinent to insolvency matters, and these services are suspended ‒ KZN and Free State: There is a suspension on the issuing of all
for the duration of the lockdown. summons and applications, and only urgent applications will be
issued. There is no mention (at all) of matters which are deemed
to be prescribing during the lockdown period.
© Allen & Overy LLP 2020 23. What about Court Process / documents due to be delivered in 4. What about other processes e.g. Rule Nisi (i.e. provisional
the lockdown period, are these time limits suspended during court orders) with a return date during the lockdown period),
the lockdown? Default Judgment Applications and Appeals?
‒ Generally No. The national directives issued by the Ministry of ‒ The courts' approach has been varied, as it pertains to Rules Nisi,
Justice and Correctional Services, initially envisaged a suspension but default judgment applications and appeals have been
on process until after the lockdown period. This has, however, since suspended. Particularly in relation to Rules Nisi:
31 March 2020, been removed. This seemingly also applies to ‒ Gauteng: Applications with a Rules Nisi returnable during the
documents / process due to be delivered in the SCA and lockdown period should be brought to the Judge on Urgent duty
Constitutional Courts – which are currently in recess. to extend the Rules Nisi to dates beyond this period (also through
‒ Of the major metropolitan areas, only KZN has directed that electronic means, through a designated email address.
dies non will apply during the lockdown until 17 April. According ‒ Cape Town: Rule Nisi matters returnable during the lockdown
to the directive issued on 25 March 2020, the period 27 March 2020 (including eviction matters) should be identified and
to 17 April 2020, is to be regarded as dies non for the purposes of arrangements made with the Judge on motion court duty or
the Rules of Court and any directives for the filing of pleadings, recess duty to extend the rule nisi dates to beyond this period.
affidavits or notices that may be been issued by Court. Where this cannot be achieved the duty Judge concerned must
‒ In Gauteng, the Court issued a directive on 1 April, confirming that be approached for appropriate directives.
court process due within the lockdown period can be delivered by ‒ KZN: Rules Nisi, with dates returnable during the lockdown
email and filed (together with proof of transmission to the other period, have (seemingly by virtue of the directive) been extended
parties) by transmitting the email to a designated email address. until discharged.
Alternatively if the matter is registered on the court's document
management platform (CaseLines) it can be uploaded onto the
platform. Unrepresented litigants, without access to email facilities
will be guided further at the court entrance. The directive expressly
provides that condonation will be granted for any non-
compliance / partial compliance with the statute or rule of court
to serve court process during the lockdown – attributable to the 5. Existing Trials, Applications and Pre-trial Hearings – Are these
lockdown restrictions. going ahead?
‒ Cape Town directives prohibit the "issuing of further process"
whether civil or criminal and confirm that for the duration of the
In short, No. All matters, across the courts have been removed from
lockdown period, the Court will only accept notices of intention to
the relevant trial and motion court rolls and postponed to dates after the
defend, notices of opposition and pleas – suggesting that "it is
lockdown period.
advisable" that parties consider extensions by agreement on the dies
periods to avoid unnecessary travel during the lockdown period.
© Allen & Overy LLP 2020 36. What about other Regulatory Bodies (South African Revenue Services (SARS) and
Companies and Intellectual Property Commission (CIPC)
SARS, broadly:
‒ Access -- SARS has issued has advised taxpayers and tax practitioners to use the online channels such as eFiling, the SARS MobiApp and
e@syFile to interact with SARS. SARS has provided dedicated email addresses for this purpose on their website. Onsite visits to SARS offices are
possible, but an appointment must be made on the SARS website, and SARS has cautioned customers to please remember the lockdown
restrictions that are in place when travelling to a SARS branch.
‒ Submission of returns – There is no relief for the submission of tax returns. Taxpayers are required to ensure that returns are submitted on or
before the due dates.
‒ Disputes -- According to a notice from the Chairperson: Customs and Excise National Appeals, the days during the period 27 March 2020 to 16
April 2020 will not be taken into account in determining days or the period for purposes of an appeal due under the Customs Act. SARS has not
given a similar notice for objections and appeals under the other Tax legislation. Where a taxpayer is unable to comply with a prescribed period
during which steps in the dispute process must be instituted due to the lockdown, it would likely constitute an exceptional circumstance.
CIPC:
‒ In relation to Patents, Designs, Copyright & Trade Marks:
‒ The dates from Wednesday, 25 March 2020 – Thursday, 30 April 2020 will be regarded as dies non for purposes of the (a) The Trade Marks Act;
(b) the Patents Act; (c) Design Act (d) Copyright Act; and (e) Registration of Copyright in Cinematograph Film Act. CIPC will be closed to the
public during this time, (including the call center and electronic query system).
‒ Responses to official communications from CIPC, documents relating to extensions of any time periods (eg: prosecution and
opposition/cancellation time periods in respect of trade marks); documents relating to legal proceedings (eg: affidavits in opposition/cancellation
proceedings in respect of trade marks), etc. that fall due during the dies non period, are extended and will now fall due on 1 May 2020.
‒ In relation to Companies, CC's and Co-operatives:
‒ From 16h00 on 24 March 2020 - 1 April 2020,CIPC closed down all services relating to companies, close corporations and co-operatives,
including call centre, self service centres and the online enquiry system.
‒ As from 1 April 2020 until 16 April 2020, only fully automated services were made available to the public, including the following services:
a. Annual Returns including Annual Financial Statements or Financial Accountability Supplement:
b. Compliance Checklist
c. Short Standard Private Company (without name)
d. Enterprise search
© Allen & Overy LLP 2020 46. What about other Regulatory Bodies (South African Revenue Services (SARS) and
Companies and Intellectual Property Commission (CIPC) (cont’d)
e. R30 Disclosure
f. Company and Close Corporation Financial Year End Changes
g. Company and Close Corporation Address Changes
h. Auditor, Accounting Officer and Company Secretary changes
i. Company name changes
j. BB-BEE Certificate
k. Domain Name Registration
‒ Filing Annual Returns: the filing period, which falls within 25 March 2020 to 15 April 2020 will be extended until 30 April 2020. If the filing period
falls outside of such period, the normal prescribed filing period will be applicable. This extension of the filing period has the effect of deferring
penalties, compliance checklist and preparation of annual financial statements accordingly.
‒ Deregistration: CIPC will not take any action to place companies and close corporations into deregistration for the failure to lodge Annual Returns
or to finally deregister any company or close corporation that is currently in deregistration process for non-compliance with Annual Returns, until
further notice.
‒ Name reservations: all name reservations that fall within the 25 March 2020 to 15 April 2020 period, will automatically be extended
until 30 April 2020.
‒ Business rescue: Business rescue proceedings which commenced, but which had not yet been completed within the time period contemplated
within section 129 of the Companies Act, at the time of the lockdown, have (by way of general extension under the notice from CIPC) been
extended until 30 April 2020. In respect of business rescue proceedings that have not yet commenced in terms of section 129 of the Companies
Act, dies non will apply until 16 April 2020, i.e. no filings contemplated in section 129 of the Companies Act can be lodged with CIPC until after the
lockdown period expires.
‒ The Commission will not invoke its powers under section 22 of the Companies Act, in the case of a company which is temporarily insolvent
and still carrying on business or trading. This is only applicable where the Commission has reason to believe that the insolvency is due to business
conditions, which were caused by the COVID-19 pandemic. Notably, the effect of the Practice Note is simply to provide a practical reprieve for both
companies (from the perspective of compliance with a notice received from CIPC) and the CIPC itself (from an administrative perspective) during
the COVID-19 pandemic, where it is anticipated that a number of businesses may carry on business or trade in insolvent circumstances.
© Allen & Overy LLP 2020 57. Are the Competition Authorities still operating?
Yes, in particular
‒ The Competition Commission has significantly scaled down operations but has undertaken to prioritise all COVID-19 complaints and the
enforcement of the regulations gazetted by the Minister of Trade and Industry. For the duration of the lockdown, the Commission has discouraged
the filing of complaints unrelated to COVID-19 as well as all merger transactions except those involving failing firms or those firms in distress.
Complaints related to abuses of dominance or such exploitative practices relating to COVID-19 shall be handled between the Commission and the
National Consumer Commission through a dedicated team and the designated electronic channels.
‒ The Competition Tribunal:
‒ Filings must be made electronically through a designated email address.
‒ Complaint referrals already enrolled have been postponed indefinitely (as are pre-hearing and hearings relating to interlocutory proceedings. No
new matters can be set down (including any consent orders or settlement agreements). Any urgent matters will be set down by arrangement
with the parties.
Hearings in Respect of Mergers.
‒ Phase 1 mergers (unopposed, non-complex mergers as classified by the Commission) will be head in chambers by
the Panel by conference call;
‒ Phase 2 mergers (classified as complex but unopposed by the Commission) will also be heard by conference call, although parties may be
required to make themselves available for hearing via teleconference.
‒ 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 6This document is for general guidance only and does not constitute definitive advice. 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 (Holdings) Limited is a limited company registered in England and Wales with registered number 07462870. Allen & Overy LLP and Allen & Overy (Holdings) Limited are 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 a director of Allen & Overy (Holdings) Limited or, in either case, 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, and a list of the directors of Allen & Overy (Holdings) Limited, is open to inspection at our registered office at One Bishops Square, London E1 6AD. Allen & Overy is an international legal practice with approximately 5,400 people, including some 550 partners, working in over 40 offices worldwide. A current list of Allen & Overy offices is available at allenovery.com/locations. © Allen & Overy LLP 2020 7 PERS_KH-SHAWNI JHP1: 2000044882: 2
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