‘POSTPONING CASES DUE TO COVID-19 UNACCEPTABLE’

MBABANE - Chief Justice (CJ) Bheki Maphalala is reported to have told judges that it was unacceptable to postpone matters on condition of the coronavirus.

This was disclosed by Judge John Magagula in court on Wednesday when he declined to postpone a matter involving Melusi Ncongwane and Toyko Motors.
Judge Magagula revealed the CJ’s instructions after one of the attorneys involved in the matter, Mangaliso Nkomondze, applied that the matter should be postponed.

It was while Nkomondze was submitting that the judge interpolated and asked him whether the application for postponement was on account of the coronavirus.

Affirmative

The lawyer’s response was to the affirmative and he further informed the court that the parties had agreed to a postponement until the situation had normalised.
His application for postponement on condition of the coronavirus was, however, not welcomed by the judge who stated that he was not going to allow that as per the CJ’s instruction. 

He told the lawyers that the CJ had called them and specifically stated that no matter should be postponed on condition of the coronavirus. This resulted in the lawyer applying for the recusal of the judge from the matter.

Hearing

Procedurally, litigants in a civil matter are entitled to ask the court to defer the hearing or trial of any matter before it and ordinarily the court ought not to require reasons, especially when the parties are in agreement with the postponement. 

According to a legal expert, to compel the parties to proceed with trial, where the postponement suited both parties, was unreasonable and unfair.
“In the circumstances, where the coronavirus is infecting people at high rates, it seems reasonable and fair for litigants to ask that they do not continue with their matter in court pending the containment of the spread of the virus,” said the senior attorney, who preferred anonymity.

According to the legal eagle, likewise it was therefore unreasonable for the court to order that the trial continue, with the litigants  and the judge himself taking the risk of being infected, moreso because there were no screening facilities to determine that those who were in court had not been infected.
“In court during trial there will be exchange of court papers, witnesses will be using the same microphone and there are no surgical gloves or masks provided.
“The risk of infection is high,” opined the legal expert.

Meanwhile, the CJ recently issued a directive informing all judges to continue working during this period.
“You are reminded to report to work timesouly and execute your duties accordingly. You are further advised to observe the necessary precautions in the practice directive,” reads part of the directive.

Excused

According to the practice directive, only judicial officers who are lawfully on leave will be excused from reporting to work.
It had been reliably gathered that the directive by the CJ did not sit well with most of the judges as they felt that by continuing coming to work they were exposing themselves to the virus.  
“This is not only unfair but it is also discriminatory as flexible working conditions have been made for the support staff,” said one of the concerned judges.

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