By Darryl Bernstein, Partner and Head of the Dispute Resolution Practice, Rui Lopes, Associate, and Nothando Mthimkhulu, Candidate Attorney, Dispute Resolution Practice, Baker McKenzie Johannesburg
There is no doubt that the COVID-19 pandemic has created widespread uncertainty for businesses around the world. During this time, many businesses have been faced with a mounting risk of potential legal disputes and drastically changed circumstances, to which have had to adapt in order to survive.
In response to the spread of COVID-19 in South Africa, the government implemented various measures and regulations to contain and limit the spread of the virus. President Cyril Ramaphosa, in his address on 23 April 2020, announced that the country would implement a risk-adjusted alert level system. This system determines the level of restrictions to be imposed on the country as the economy gradually reopens. The higher the risk, the more extensive the restrictions. As the country moves to the lower risk levels, a lot of these restrictions will ease up, allowing more industries to operate, with more extensive movement allowed. During level 4, the country’s borders have continued to be closed and no cross-border travel has been allowed. This has posed difficulty for businesses who had planned to begin operating as normal, especially those transacting across borders. As restrictions ease, such difficulties could result in a rise in the number of disputes being brought before the courts.
During levels 5 and 4 of the lockdown, litigation continued, subject to certain conditions contained in the Directions released by the Minister of Justice and Correctional Services (Directions) on 26 March 2020, as part of the Disaster Management Act 57 of 2002. According to the Directions, access to courts was restricted to only matters that were essential and urgent, which included: service and execution of court orders relating to COVID-19; service of domestic violence protection orders; service of process relating to claims prescribing and all eviction, execution of attachment orders, etc. As South Africa prepares to move into level 3 of the lockdown, it is anticipated that further updates from government regarding these restrictions might be forthcoming.
Due to the restrictions placed on legal proceedings by the courts and the expected resultant backlog, businesses considering legal action during the lockdown should ensure that litigation is the best platform to address the matters they face, and consider whether there are other forms of virtual dispute resolution that could be used to resolve these matters more efficiently. For example, various legal practitioners have proposed a move towards an online court system, which would allow parties to a matter to mediate online via video conferencing tools. In addition, parties to a dispute are able to negotiate via video conferencing or teleconferencing calls instead of the usual face-to-face format, if all parties have access to the right technology and infrastructure needed to conduct the negotiation in this way. Further, legal practitioners have been making use of CaseLines, an electronic case management and litigation system introduced in the Gauteng High Court in January this year, which allows lawyer to easily access and store legal documents needed in a legal case.
Adaptable businesses that engage with legal advisors who are able offer virtual, cross-border legal advice and solutions will be more successfully able to address current challenges around the resolution of disputes, during the pandemic and beyond.
