Without prejudice

COVID-19 Lockdown gently nudges court

procedure into the 4th Industrial
Revolution June 2020

By KYLIE SLAMBERT AND YURI TANGUR, Published in COVID-19 The Law

The COVID-19 pandemic has tested our time-honoured court system. Initially, most court work
was curtailed, but it has since adapted valiantly. This period may be an unlikely but promising
opportunity for the courts to catch up with technology.

High Court: Gauteng Division

At first, using the digital CaseLines system was encouraged, but not mandatory. That soon
changed. In the Judge President's Directive of 25 March, dealing with the special arrangements to
address the COVID-19 implications for litigation, he advised that until 20 April, the court would be
open to hear urgent matters only. Similarly, concerning new case numbers and new matters to be
enrolled, only urgent matters would be entertained. Papers would be uploaded on the CaseLines
platform or sent by email. Where this was not possible, physical papers would be delivered. Orders
of the court would be communicated by CaseLines or email. Parties (in urgent matters) could agree
to vary the rules to facilitate the electronic exchange of papers and condonation would be
granted ipso facto. Hearings would be conducted by tele/videoconferencing and other electronic
means, unless the presiding Judge directed differently.

At first, limiting court hearings to urgent matters seemed like a missed opportunity. However,
laudably, the courts were trying something new, giving due consideration to health and safety, with
a smaller number of matters.

On 11 May, consolidating directives were issued, which took into account prolonged restrictions in
movement and health and safety considerations. According to that directive, documents in all
matters must be uploaded to CaseLines unless a judge permits the use of email. Submissions for
matters on paper should be made via CaseLines and email, and oral hearings, where required,
will be dealt with by video conferencing. Judges will use their discretion to determine the mode of
hearing evidence, as well as whose responsibility it will be to set up video conferencing, and the
costs involved. Innovatively, the directives include options for judges on how to use links to
increase efficiency. There is significant reliance on email transmission and, in cases where a
litigant appears in court, the directives make provision for the use of a 'virtual courtroom'. In specific
instances where video conferencing is used, the Applicant holds the responsibility for setting up
the conference and ensuring that all parties have the appropriate access link. In certain matters,

1
presiding officers have the discretion to determine the manner in which proceedings are dealt with,
which may include a teleconference using the 'Zoom' platform.

Gauteng had been moving towards a more digital system and was better prepared than some
areas. The thoroughness of the recent directives indicates recognition of the long-term approach
that needs to be taken; it will be interesting to see if, and how, the directives develop in tune with
lockdown restrictions in the months to come. This is an investment in the court's technological
future.

Labour court

Initially no matters were allocated for hearing in the Labour Court. Matters already allocated were
removed from the roll. No judges were available, and staff members were not available to receive
documents. Parties with urgent matters contacted the registrar, who would contact the judge on
duty to ask whether they would consider the matter. If this was agreed, it was done telephonically
and documents were served and filed by email.

Although it is commendable that the Labour Court remained open for urgent matters, these
directives seem like a missed opportunity since the court, arguably, has a slightly lesser caseload
than the high court. The wheels of the court system could have continued to turn more swiftly had
the court been open to hearings by other means, such as video conferencing.

On 28 April, new directives were issued, recognising the inevitable need to adapt to prolonged
lock-down restrictions. In motion proceedings, submissions will be submitted by email unless a
judge allows oral hearings by video conference. If video conferencing is used, the Applicant bears
the burden of the costs to set it up, unless a judge decides differently. Concerning trials, the parties
must submit a joint practice note that provides the email address and contact numbers of the
parties and must indicate what teleconference arrangements have been decided on, what
evidence can be adduced by affidavit, and to what extent a physical hearing is impossible.

Unfortunately, there is no provision for a 'virtual courtroom' or a version of CaseLines. However,

there is detailed etiquette for video conferencing which refers to, amongst others, audio recordings,
dress, ambient noise, and procedure for speaking. This is useful and may serve other courts well.

Like the high court, there is no firm commitment to a video-conferencing platform. It may be prudent
for firms to prepare primary, secondary, and even tertiary video conferencing platforms, and
possibly the accompanying hardware, so that these are prepared should the need arise.

CCMA

The CCMA initially operated minimally during the lockdown period. It remained open for general
enquiries by telephone, email, and social media. Temporary Relief Scheme (TERS) applications
were done electronically. It re-opened on 18 May and parties are now allowed to submit physical
copies of referral forms. Physical hearings may take place, subject to directives and regulations.
However, parties are still able to submit referrals electronically. Conciliations may also take place
telephonically or via a video conferencing platform with which the CCMA or commissioner is
satisfied and which is available to both parties and the CCMA.

Parties to arbitrations must hold a pre-arbitration conference and reach consensus on numerous
factors including whether the evidence would be admitted by video-conferencing or at the
employer's premises, and how the evidence would be adduced if a witness does not have access
to video-conferencing technology. Like the Labour Court, the CCMA has its own etiquette to be
followed during video conferences, and sometimes as to how audio recordings are to be handled.

2
The SCA paves the way

The SCA initially considered not conducting any physical hearings in May and explored the
possibility of using a specific web-based platform, but at the end of April, it was decided that virtual
hearings would take place by telephone or video-conference. Since there is no specific platform,
parties must agree beforehand. However, the court's permission is still required for a virtual hearing
and record of the hearing.

The court's own etiquette must be followed and includes some factors not mentioned by the other
courts such as firewalls, background lighting, participants needing to be alone (in a secure room
with a door closed). These rules establish a 'new normal'.

Obstacles to overcome

Remote litigation requires technology, which is an obstacle that participants to a private arbitration
might not experience. If a court decides that it will only hear matters by video conference,
participants will need access to this technology. Given the socio-economic make-up of the country,
amongst other obstacles, it is not a given that everyone has such access. This may explain why
the courts have decided to be flexible when it comes to electronic mediums, and why the CCMA
and the Labour Court have decided to focus only on basic electronic forms for the sake of efficiency
and access by everyone.

It is a laudable start which, if successful, may lead to permanent directives. The 'virtual court'
proposed in Gauteng is a welcome development and may address the 'lack of technology' issue,
depending on movement restrictions, among other factors.

Other challenges may arise from the doctrine of effectiveness in civil matters, which is why these
directives may have been limited to urgent matters which will be dealt with on a case-by-case
basis.

Overall, the Gauteng High Court and SCA are leading this court system revolution and, if others
follow, it will streamline the process for the entire country.

The technological advances to the court system during this lockdown period have been
commendable. There will be challenges and the courts are likely to continue to adapt directives as
the situation unfolds – particularly with deference to possible health risks and to ensure that the
wheels of the legal system continue to turn.

Although more can be done, the courts' actions taken during lockdown could set the tone for their
future place in the 4th Industrial Revolution.

Slambert is an Associate, Commercial Litigation practice and Tangur a Candidate Attorney,

Employment practice with Lawtons Africa.