“Get to the Front of the Line” –  Litigating on breaches of obligations during lockdown

It is our experience that numerous parties have been and remain in breach of their obligations in respect of contractual relationships which were entered into prior to the advent of the Covid-19 pandemic. As the financial world opens up in the following months’ many contracting parties have been trying to resolve their disputes and issues. Many have been unable to do so. Clients are also concerned that if their opponents become illiquid because of the lockdown they will not be able to recover their damages.

During the initial level 5 lockdown period there was very little opportunity to progress matters except for urgent applications in the courts. New and urgent matters were issued if they related to essential service providers or any aspect of the lockdown regulations. Certain trials and applications which had already been set down were heard via zoom hearings. It was however not possible to issue new matters in the normal course.

The Johannesburg and Pretoria High Courts recently introduced an electronic system or platform upon which new matters are to be conducted called “Case Lines”. The system has not yet been rolled out in many of the other High Courts and most certainly does not exist in the Magistrates Courts. There is a huge backlog in the issuing of new matters and obtaining new case numbers on the new electronic system referred to above. The same situation exists in respect of the receipt from the Magistrates Courts of new case numbers physically issued.

Nevertheless, because many contracting parties have not been able to resolve their differences arising from the lockdown and from one or both of the parties’ resultant breach of their agreements those parties are now starting to approach the Courts to settle their disputes. The Courts have been and will continue in the foreseeable future to become busier. There is already a backlog in respect of those matters which were dormant during the lockdown period or which had not been set down and accordingly could not be set down for hearing. It is anticipated that there will be an unusual number of new cases due to the unusual circumstances which arose.

Advice

Our advice is that if you do have any rights which you wish to enforce through the Courts that you should attend to instructing your attorneys sooner than later. It is our view that anybody who delays instituting action is going to find it more difficult to have their matters issued and heard if they are at the back of the line. Prescription of claims may also become an issue.

Written by Lennard Cowan
of Cowan-Harper-Madikizela Attorneys

Lennard Cowan of Cowan-Harper-Madikizela Attorneys