Backlog in criminal trials worries Durban attorneys

Published May 7, 2020

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Durban - DURBAN attorneys fear the impact of the national lockdown on their cases, which were scheduled for March and April.

They said the delays could result in trials, judgments and sentencing proceedings being heard at the end of the year.

On March 31, Ronaldo Lamola, the Minister of Justice and Correctional Services, issued directives to address, prevent and combat the spread of Covid-19 in all courts, court precincts and justice service points across the country.

This included restricted entry into courts and court precincts unless for urgent and essential matters such as a bail application in the case of a first appearance or a matter which, if not enrolled during the lockdown, would lead to substantial injustice.

However, criminal trials and civil cases not considered as urgent and essential services were not to be placed on the court roll and were adjourned to dates after the lockdown.

Attorney Noven Naidoo, who owns a private law firm in Chatsworth, said he had a partly-heard bail application when the lockdown was implemented and his client had spent more than a month at Westville Prison.

Durban attorney Noven Naidoo.

Picture: Supplied

“The matter was postponed twice before the announcement of the extended lockdown and was expected to be heard on April 30. However, the lockdown was still in effect and the matter was scheduled for May 6.”

Naidoo said he was instructed to represent employees at a factory in Chatsworth, who were arrested during the first week of the lockdown.

“They had been remanded in custody and have still not appeared in court for their second appearance due to the lockdown.

“One of the accused is four months pregnant. My clients are being prejudiced as Westville Prison had imposed a lockdown whereby no accused person is being sent to court.”

Naidoo, who specialises in criminal and family law, said he had about 10 trials scheduled for April.

“None of these matters proceeded and were adjourned provisionally to the end of May and June for the accused to appear before the court to set new trial dates. However, this could delay cases and clients could only expect to stand trial later in the year or next year.

“Most of my clients were hoping to appear in court and finalise their matters as their cases are hanging over their heads. Some want closure and others need finality as they cannot keep staying away from work to attend court.”

Lasanthan Pillay, co-partner at Pillay Cohen Attorneys in Morningside, said cases scheduled between March and April were postponed and they were still waiting to obtain dates to be heard in July.

Durban attorney Lasanthan Pillay.

Picture: Supplied

Pillay said the firm specialised mainly in civil matters.

“Our clients are very concerned about the status of their matters. Some want to get divorced and others have collection matters where people owe them money. It affects them emotionally as well as financially.

“My fears are that the court system is already strained and that this pandemic may result in the entire system collapsing. We may only get court dates for next year.”

Pillay added that after the lockdown, the courts should remain open for a longer period or once every weekend.

“This is so that the backlog can be dealt with. I believe that justice delayed is justice denied.”

Reshen Pillay, of Anand Pillay Attorneys Inc based in Pietermaritzburg and uMhlanga, said they dealt with matters including criminal, civil, conveyancing, business rescue and liquidation.

He said while many of his bail

applications had been heard, all criminal and civil matters were adjourned to May.

“There will certainly be a delay with both civil and criminal matters as the already-flooded courts will now experience a further backlog once courts open and are fully operational. I suggest that matters are assessed and categorised and the semi-urgent matters given

preference.”

Pillay said in addition to court proceeding delays, the Master’s Office had also been closed for the duration of the Level 5 lockdown.

“The affected heirs and surviving spouse of the deceased person were severely prejudiced as letters of executorship could not be issued, which meant that many families would be destitute in these trying times. They would not be allowed to access any of the funds of the deceased with the Master’s Office being shut down.

“The guardians’ funds were also not accessible, leaving many children destitute.

“The Master’s Office would also have a serious backlog to deal with and should prioritise urgent matters regarding deceased estates and guardian fund matters.

“However, it is a relief to note that as per the minister’s directions, the Master’s Office’s services has resumed as of May4, with most of their services to be conducted via email,” said Pillay.

He said the legal fraternity had been seriously affected by the lockdown and there would be a backlog in all these sectors.

“Matters should be prioritised according to their urgency, and more staff should be employed within the relevant sectors to deal with the backlog.

“Courts should consider extending their working hours.

“In addition, the courts should call upon competent legal practitioners to act as magistrates and judges to assist with the backlog of both civil and criminal matters.”

Advocate Elaine Zungu, the Director of Public Prosecutions (DPP) in KZN, said all stakeholders in court environments were aware that they would have to deal with backlogs.

“It needs to be noted that when cases get postponed, some of the matters will definitely become backlog matters. However, it is noted with certainty that they will have plans devised to deal with the same.”

Zungu said bail applications and first appearances had been dealt with in courts.

“There can be no backlog for a bail application because a bail application is an urgent application.

“It is for this reason that it was

stated that bail applications must continue, and the courts have dealt with these.

“The high court also dealt with bail appeals during this period. Each and every court will determine how many cases they have as backlogs and will determine plans as to how to deal with the same.

“The individual courts have individual challenges which may be unique to that court and thus the courts will plan, according to their conditions, how they will deal with the backlogs.”

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