Trial and error over trial and pandemic: tracing a pro bono matter during the pandemic
Webber Wentzel, Johannesburg
Jacqueline van Schalkwyk
Webber Wentzel, Johannesburg
Access to courts is a constitutional right afforded to all South Africans and should be pursued even in unprecedented times. Although Covid-19 has resulted in what is now known as the ‘new normal’, it is critical that members of the judicial system continue with their work and ensure the public has access to justice.
This article aims to address just that: the responsibility and need for the legal field to continue in its services despite the obstacles presented by a worldwide pandemic.
The matter of Smith and Others against the Minister of Justice and Correctional Services
In the High Court of Johannesburg under case number 21639/2015, five plaintiffs (the ‘plaintiffs’) instituted action against the Minister of Justice and Correctional Services, in his capacity as the employer of certain prison officials at Leeuwkop Correctional Services (‘Leeuwkop’), who the former allege to have subjected them to various forms of torture. The matter initially commenced with trial on 29 October 2019 but was postponed until its recent re-commencement on 1 March 2021. To fully grasp the importance of the matter’s ability to continue during a time of international panic, detailed below are relevant background facts.
In August 2014, the plaintiffs, along with other residents of the same cell, were subjected to a surprise inspection by prison officials at Leeuwkop, the results of which allegedly led to the discovery of a cell phone and three sim cards. The residents of the cell were charged for the alleged discovery and, therefore, they were demoted, leading to the loss of various privileges.
Attention must then be drawn to the following pivotal point: the complete disregard of the relevant procedure in place, designed to address instances where an inmate commits a disciplinary infringement. The Correctional Services Act, 1998 (the ‘Correctional Services Act’), through sections 24(3) and (5) allows for the restriction of amenities as a penalty for a disciplinary infringement and requires certain procedures to be followed before a penalty is imposed. The plaintiffs alleged no disciplinary procedures to have been followed before the removal of their privileges.
Although the parties were verbally charged for the possession of a cell phone, the charge sheet included an additional charge for the blocking of the door. Later in the same month, the prison officials arrived at the door of the cell inhabited by the apparent perpetrators, only to find it, again, blocked. After various fruitless attempts to open the blocked entrance, the Emergency Security Team was instructed and through the assistance of a locksmith, the door was opened.
What was to follow, resulted in appalling acts of torture. The inmates were asked to step out of the cell in pairs and on doing so they were beaten with batons, shocked with electric shields and kicked. The assaults continued in the courtyard, prison office and even the showers. The inmates were made to do handstands, dogs were released on them and they were shocked with electric shields while the shower water was running. In the office, the inmates were asked to produce the cell phone and further assaults followed which included an official proceeding to walk on their necks while they were lying on the floor.
When asked to do the handstands, any failed attempt to keep the said position resulted in them being shocked with electric shields. The results of these horrifying acts were the physical and emotional suffering of the plaintiffs, which continue until this day. Once the assaults came to a halt, four of the five plaintiffs were taken to single cells, the conditions of which were uninhabitable. They were provided with a wet mattress, two blankets and a bucket as the toilets were broken.
This then brings us back to the Correctional Services Act, which terms necessitate the maintaining of discipline and order in correctional facilities through the use of firmness, of cause none which is greater than necessary, for security purposes and good order in prison. It is important to note that the necessary ‘firmness’ implied by the Act, in no manner or form speaks to acts of torture.
The Prevention of Combating and Torture of Persons Act, 2013 (the ‘Torture Act’), defines torture as an act of inflicting severe physical or mental pain or suffering on another person. The act can be inflicted with the intention to obtain information or a confession from a person, or to punish a person for an act they have committed or are suspected to have committed, to intimidate or coerce a person or another to do or refrain from doing something, or for any reason based on discrimination.
The terms of the Torture Act furthermore prescribe that a person is guilty of committing the act of torture if: (i) the person commits torture; (ii) attempts to commit torture; or (iii) instigates or procures any person to commit torture. On conviction of any of these, a person will be liable for imprisonment, even life imprisonment. Any defence formed on the grounds of being the head of state or government, or having been under a legal obligation to obey a manifestly unlawful order, is not sufficient and will not result in a reduction of the applicable sentence.
As the Torture Act demands, it is the responsibility of Cabinet members to ensure that public officials working in custody, investigation and treatment of any detained, arrested or imprisoned persons, are educated and well-informed of the prohibition on torture.
Webber Wentzel approached to join as attorneys of record
On or about 30 January 2020, Lawyers for Human Rights (LHR) approached the Webber Wentzel Pro Bono team to request their assistance in the matter. In the request, LHR indicated that although it was very much committed to seeking justice in this matter, a collaboration with another firm would help some of the financial burdens that they were facing and, also, ensure that the matter is run to its full course. The Webber Wentzel team gladly accepted the request to participate in the matter, on a pro bono basis, and accordingly proceeded with the filing of the relevant notice of appointment as attorneys of record.
The national lockdown
In the space of a few weeks after the Webber Wentzel team joined forces with LHR, South Africa entered into a nationwide lockdown in response to the rapid spread of Covid-19. As the number of positive cases continued to rise, the country was placed in extended lockdown and this brought various complications as the matter was set to re-commence on 11 May 2020.
In the early stages of the national lockdown, the judiciary released urgent directives restricting access to courts and on 17 March 2020, a directive was published in which it read: ‘Save for Urgent Court matters, Judges and staff will deal only with matters that are already enrolled for hearing; provided that parties may agree to postpone matters (including unopposed matters) that have been enrolled during this period.’ As the matter was part heard and enrolled on the 2020 court roll, this directive did not present any issues.
Under normal circumstances, a prisoner is allowed to consult with a legal practitioner and those facing trial or sentence must be provided with the opportunities and facilities to prepare. On 9 April 2020, the Minister of Justice and Correctional Services indicated in the Government Gazette that, where possible, legal representatives and inmates may, in urgent matters, communicate telephonically through the Head of Centre. Also, that the Head of each Centre must designate areas within their facilities to be used by inmates for this purpose. However, during a consultation held on 19 January 2021 between the relevant legal teams and the presiding Judge Francis, counsel for the plaintiffs indicated that they had endured countless failed attempts when trying to arrange for a consultation with their clients, who were still in police custody.
The Honourable Justice Francis responded in requesting counsel for the defendants to assist in the necessary arrangements for such consultations and that if the plaintiffs’ legal representatives are still not allowed to consult with their clients, he was prepared to make an order that the prison officials must allow them to consult with their clients.
The meeting with Judge Francis resulted from an application for postponement lodged by the defendant’s legal representatives. The lead counsel for the defendant had suffered health complications from a Covid-19 infection and, as a consequence, would not be able to appear in open court on 25 January 2021. The parties agreed that the matter would be removed from the court roll for 25 January 2021 and be placed on the roll for 3 March 2021 to 26 March 2021, the remainder to be heard in the third quarter of 2021. Furthermore, that the matter would proceed virtually should the lead counsel still not be able to appear in open court.
Further outcomes of the 19 January 2021 meeting
As a result of the meeting, the plaintiffs’ legal representatives have been allowed in-person consultations with their clients. The team would obtain permission by way of email correspondence from the prison officials a week before a consultation and, on arrival at the correctional centre, provide the security personnel with the relevant document recording the approval.
The plaintiffs’ legal representatives have been able to liaise with prison officials to arrange casual clothes for those who are still in police custody. Furthermore, that the legal representatives can consult with the relevant plaintiffs at the Johannesburg High Court, after the adjournment of the Court.
On 3 March 2021, the postponement application was heard and dismissed by the Honourable Justice Francis on the virtual platform of Microsoft Teams. The Court directed the matter to continue but only until 1300 hrs to accommodate the fatigue experienced by the defendant’s lead counsel after his Covid-19 infection. As of 4 March 2021, the matter continues to be heard virtually and those plaintiffs that are still in police custody are able to watch the proceedings from a Courtroom at the Johannesburg High Court, and afterwards can enjoy a consultation with their legal representatives.
In conclusion, the parties in the above matter have been able to adjust to the new normal and adhere to safety protocols while ensuring that the wheels of justice move swiftly.
 Constitution of the Republic of South Africa, Act, 1996, s 34: ‘Everyone has the right to have any dispute that can be resolved by the application of law decide in a fair public hearing before a court, or where appropriate, another independent and impartial tribunal or forum.’
 Correctional Services Act, s 22(1).
 Section 3 of the Torture Act.
 Torture Act, s 3(a) and (b).
 Torture Act, s 4(1).
 Torture Act, s 9(2)(b).
 Urgent directive in respect of restricting access to court in the light of Covid-19, 17 March 2020.
 Correctional Services Act, s 17(1) and (4).
 Directions issued in terms of regulation 10(2)(a) under the Disaster Management Act 2002.