THE closure of court business presents challenges for accused persons seeking justice, a situation likely to increase the backlog of cases although it is a necessary Covid-19 preventive measure, lawyers say.
The Judicial Service Commission (JSC) on Monday last week suspended all court business in response to a surge in Covid-19 cases in the country. Currently, there are no virtual court sittings to ensure the smooth operations of the courts during the lockdown.
In a speech to mark the official opening of the 2021 legal year, Chief Justice Luke Malaba said the JSC has not been spared the effects of Covid-19 amid reports that 31 of its staffers have tested positive to the coronavirus.
The suspension of court activities applies to all courts. The only exceptions are urgent applications, bail applications or initial remands.
All civil matters pending in the magistrates courts are deemed to have been postponed to the first business day after the last day of the 30-day lockdown announced recently by Vice-President Constantino Chiwenga.
In respect of all criminal matters, all current remand dates that fall within the 30 days have been pushed a month further. Normally, court procedures have time limits or timeframes, and lawyers argued the suspension, though necessary, presents challenges to self-actors.
“We find ourselves in a very difficult situation where the judiciary has to operate in the manner which it used to but at the same time make sure that those appearing in court are safe,” lawyer Nqobani Sithole said.
“The biggest challenge is on bail on changed circumstances because it is more technical because when there are changed circumstances in prison, the most difficult thing to do is to access the court that gave the initial decision.
“There is a challenge there because most of the urgent applications are technical and have an effect on the person who will be trying to make such an application to appreciate the exigencies of that application. I think, in all fairness, if one is a self-actor it is very difficult to have your rights protected.”
Chiwenga moved the country from “level two” back to “level four” of the lockdown that among other limits such as restriction of funeral gatherings to 30 people, closure of bars and bottle stores and a 6pm to 6am curfew.
“Bail has become a constitutional right. There obviously have to be some mechanisms put in place to balance the rights of the accused persons and litigants as well as measures that combat the spread of Covid-19, more so when the courts are dealing with self-actors,” said lawyer Kholwani Ngwenya.
“It’s now up to the judicial officer to act in the best interest of an unrepresented accused person. Similarly, in urgent matters where a litigant is unrepresented, there is generally laxity in the strict adherence to the rules and procedure of the court.”
Chief Justice Malaba, in his speech to mark the opening of the 2021 legal year, said the JSC would thrive to maintain efficiency since the courts are mandated by the law to resolve disputes brought before them.
According to Malaba, the 2020 initial phase of the lockdown resulted in an increase in the backlog of cases.
“Even after the lockdown was partially lifted, it remained very difficult for witnesses to attend court for trials. The majority of criminal cases are heard in this court and it led to the courts placing accused persons on remand, causing very few cases to be finalised since there were no trials,” Malaba said in his speech.
“This caused the increases in the backlog of criminal cases at most of the courts. Processes in the civil court are litigant driven. Due to lockdown-induced travel restrictions, the court received 52 655 cases less than in 2019. It also completed 52 850 cases less than in 2019.”