The recent judgment in Union-Swiss (Proprietary) Limited v Govender and Others, delivered by the Kwa-Zulu Natal Local Division of the High Court, dismissed an application seeking an order that the trial set down for a period of 10 days be conducted remotely via Microsoft Teams.
The trial was scheduled to begin on 24 August 2020. On 5 June 2020, the plaintiff's attorneys wrote to the Judge President ("JP") of the Kwa-Zulu Natal Local Division in accordance with the JP's directive dated 1 May 2020, which stated that in light of the COVID-19 pandemic, open hearings in court were discouraged and should be a last resort. The plaintiff's attorneys requested that the trial proceed on the allocated date, but instead of proceeding in open court, it ought to be conducted using Microsoft Teams.
The plaintiff's attorneys provided detailed proposals for the conduct of the trial via Microsoft Teams, which included:
- To the extent that any of the defendants were unable to carry any costs associated with internet connectivity or infrastructure, the plaintiff was prepared to make its offices available;
- The plaintiff's witnesses who were based in Cape Town, Johannesburg and Durban, would testify in the plaintiff's attorneys' respective offices in those cities. An invitation was extended to the defendants to send representatives to be present at the venue from where the witnesses would be testifying. This was probably suggested to guard against the dangers of a witness being coached to give evidence in a particular way;
- Adequate steps would be taken to ensure that the venue from where the witnesses would be testifying would be well lit and free from unwarranted interference or background noise;
- In the event of a break in internet connectivity, the proceedings would be paused or adjourned until connectivity could be re-established;
- The plaintiff undertook to make both digital and hard copies of the trial bundles available to the defendants and the court;
- A digital link to the recording of each day's proceedings would be circulated to all parties; and
- The plaintiff's attorneys proposed further guidelines for the conduct of the participants (counsel and attorneys) and the witnesses during the hearing.
The first defendant opposed the application for the trial to be conducted electronically by asserting his right to challenge the plaintiff's evidence as well as to present his evidence in open court. It was further argued that electronic trial hearings are not the practice in our courts and that the presiding judge would have difficulty in assessing a witness's demeanour while giving evidence, thereby infringing on the audi alteram partem principle (that no person shall be judged without a fair hearing).
The court held that while section 34 of the Constitution, the right to have a dispute resolved in a fair public hearing before a court, is the starting point, the various directives issued during the National State of Disaster need to be taken into account in determining the plaintiff's request for the trial to be held via Microsoft Teams.
The directions issued by the Minister of Justice on 30 March 2020 provided that matters that "are not identified as urgent and essential services may not be placed on the roll for the duration of the period of lockdown". It also stated that "heads of courts retain the discretion to authorise the hearing of matters through teleconference or videoconference or any other electronic mode, which dispenses with the necessity to be physically present in a courtroom".
The JP had also issued a directive on 1 May 2020 to the effect that "any party who deems it urgent that their trial must proceed shall communicate such fact to the JP... who at his ... discretion, will direct the further conduct of the matter". On 2 June 2020, the Minister of Justice issued further directions dealing with the functioning of courts under level 3 lockdown which allowed for urgent civil trials only.
The court held that the requirement of urgency does not only apply to hearings in open court and that electronic hearings are better suited to appeals, applications and opposed motions rather than trials, especially where there is opposition from one party. While electronic hearings of civil trials is not barred, the determining factor in all cases will be urgency and the potential prejudice that would be suffered, if the matter had to wait for the allocation of a new date, which could be months or years away. In this matter, the plaintiff had failed to prove urgency and the application was accordingly dismissed.
The judge also made reference to the plaintiff's attorney's offer to the presiding judge of a temporary Wi-Fi hotspot with data in the event of the judge not being able to access stable internet connectivity. While the offer was likely made in good faith, the judge noted that "such gestures have the potential to muddy the waters" and compromise the impartiality of a presiding judge.
It appears from this judgment that a court will not readily order a party in a trial to proceed with an electronic hearing, where some of the parties oppose the request for an electronic hearing. This is unfortunate and may result in more parties referring matters, which involve factual disputes, to arbitration. There have been arbitrations held via electronic platforms, with adequate safeguards agreed by the parties or stipulated by the arbitrator. Even prior to the lockdown, it could be at least a year from the institution of an action, before the matter could get to trial. The lockdown will no doubt create even further backlogs in our courts and it is regrettable that our courts are not doing more to promote electronic hearings. Such hearings will not only expedite the delivery of justice, but will also make justice more accessible and less expensive.
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