20 May 2020 by and Dispute Resolution Alert

Necessary and essential may well be two different things…

Fans of the sitcom The Big Bang Theory will remember Sheldon Cooper’s three-legged “like a milking stool” opening statement in which he schooled the judge who occupies “the kiddie table” of his profession on the principle of quod est neccessarium est licitum. As he eloquently explained, the principle entails the sentiment that, that which is necessary is by definition, automatically lawful.

At the wake of the outbreak of COVID-19, which has necessitated a nationwide lockdown, a lot of regular activity has become unlawful. The Minister of Justice published directives in terms of which legal practitioners’ movement to the courts would be limited to urgent and essential matters, subject to the legal practitioners holding permits. This issue was explored by the court in the case of Administrator of Dr J S Moroka Municipality and Others v Kubheka (1170/20) [2020] ZAMPMHC 3 (3 April 2020).

In this case, various advocates, including senior counsel attended at the High Court, Mpumalanga Division in Middelburg for a matter regarding the supply of water during the outbreak which is essential to the combating of the pandemic, rendering it an essential matter, to which the court is available for a hearing. However, in contravention of the regulations put in place by the Minister, it was apparent to the court that the permits carried by the legal practitioners were invalid or non-existent.

Consequent to this breach, the court held that the legal practitioners representing the parties, albeit in an urgent and essential matter, were not entitled to charge any fees for their appearance on behalf of the parties. Further, the court directed that the legal practitioners be reported to the Legal Practice Council as they had possibly committed a criminal offence.

This was notwithstanding the fact that in terms of the directives, the court may, in the interest of justice, order that the application of any provision in the directives be deviated from. The directives further state that if a practitioner is not able to secure a permit from the Director of the Legal Practice Council, he/she may travel to a court if he/she has various identification documents as prescribed by the directives.

In drawing the directives to the effect that should the matter be of such a nature that the breach of the directives meets the urgency, the court may condone such breach, the Minister embodied the principle that, that which is necessary would be, by definition, automatically lawful.

This principle is applied by the courts with circumspection especially as the president has declared a state of national disaster. The necessity for counsel to travel from the Gauteng Province to the Mpumalanga Province, especially without a permit, was not proven to the court. It is clear that the principle of quod est neccessarium est licitum will only be applicable in very limited circumstances.

The country has moved to level 4 restrictions which enables certain businesses to resume operations; including the professional services of legal practitioners. It appears that those legal practitioners that will be rendering services outside of their homes will still be required to be in possession of permits in order to perform such duties. In light of the above judgment, legal practitioners as well as the country at large, will not get away with contravention of the various directives solely on the principle that it was a necessary breach.

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