Remote trials in South Africa – A note on recent case law

By 23rd Sep 2020 Commercial Law

Introduction

On 7 August 2020, the Kwa-Zulu Natal Local Division of the High Court, Durban, handed down judgment in an interlocutory application which sought that a civil trial hearing be conducted remotely.[1] The application was dismissed, with the court ultimately finding that the trial was not sufficiently urgent to justify a remote hearing against the wishes of the defendants.

The judgment touches on a number of fundamental issues arising from remote hearings, and expresses a preference for in person hearings over remote hearings, unless special circumstances exist to depart from the norm.

Factual background

The applicant, as plaintiff in the action, sought an order that the trial set down for ten days commencing on 24 August 2020, be conducted remotely via Microsoft Teams, in accordance with procedures and protocols which the plaintiff proposed to facilitate the hearing, which would be subject to such directions as the court deemed fit.

The action was of a commercial nature. It concerned the alleged infringement of a trademark, and damages which the plaintiff contended it suffered as a result.

Some two and half months prior to the trial date, the attorneys acting for the plaintiff wrote to the Judge President of Durban High Court, requesting that the trial proceed on the allocated date, but by way of an audio visual hearing using Microsoft Teams. The letter was addressed to the Judge President in view of a Court Practice Directive issued on 1 May 2020, which prescribed that due to the Covid 19 pandemic, open hearings in court were to be discouraged, and should be a last resort.

The plaintiff’s attorneys set out in detail the basis on which the proposed remote hearing would take place. They indicated that if any of the defendants were unable bear the costs associated with internet connectivity or IT infrastructure, the plaintiff would make available its attorneys’ offices in Durban for this purpose. It was further proposed that the parties’ witnesses and legal representatives could participate in the trial remotely, from wherever they might be situated at the time. Adequate steps would further be taken to ensure that the venue where the witnesses would be testifying from 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 until such time as connectivity was re-established.  All of the hearing bundles would be available in both digital and hard copy formats, and the proceedings would be automatically recorded on the Microsoft Teams platform and circulated to the parties at the end of each day. In other words, the proposal was comprehensive in ambit and sought to put all reasonable measures in place to ensure that a remote hearing could be conducted without hindrance.

The defendants opposed the application. They wanted the right to challenge the plaintiff’s evidence and witnesses in open court and to present the evidence of their clients in open court. The defendants placed a premium on the right to cross-examine witnesses in person, submitting that the holding of a trial remotely via an electronic platform would infringe on the right of both sides to put their case before court, and the right of the defendants to properly challenge the plaintiff’s witnesses. The defendants also pointed out that the trial would be one of many adjourned due to the pandemic, and that it would be unfair to prefer this particular trial over other trials, in which the parties might not have suitable remote hearing capabilities.

The court’s findings

The court considered the merits of the application against the background of s34 of South Africa’s Constitution,[2] as well as the disaster management legislation which had been put in place nationally in response to the Covid 19 pandemic.[3]

Of particular relevance was Paragraph 5(a) of the directions issued by the Minister of Justice on 30 March 2020,[4] which provided that court cases which “are not identified as urgent and essential services may not be placed on the roll for the duration of the period of lockdown”, save for the proviso 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.” Further regulations were issued by the Minister on 2 June 2020, which permitted only urgent civil trials.[5]

In addition, the Judge President of Kwa-Zulu Natal issued a Court Practice Directive on 1 May 2020,[6] which provided, amongst others, that all civil trials set down for hearing during the lockdown period may be removed from the trial roll with the consent of the parties, however “any party who deems it urgent that their trial must proceed shall communicate such fact to the Judge President/Deputy Judge President and/or Senior Judge on Duty, who at his/her discretion, will direct the further conduct of the matter.

Based on the Court Practice Directive, the court adopted the view that the urgency or otherwise of the trial should be the determining factor (i.e. that only urgent trials are allowed to proceed whilst the lockdown remains in place).

The court rejected the defendants’ contention that it would not be possible to assess the demeanour of witnesses through a trial conducted by electronic means, or that a remote trial infringes on the right of a litigant to confront a witness properly. Nor would a remote hearing hamper the defendants’ ability to put forward their own version of events. It further noted that the defendants did not seriously object to the logistics and hearing mechanisms proposed by the plaintiff, and that the defendants’ concerns regarding poor internet connectivity were ill founded.

This notwithstanding, the court held that conducting a trial remotely was a departure from the norm, which should not be imposed on a litigant against their will – the position was expressed as follows: “My concern however is in respect of a court ordering a litigant to conduct its legal ‘warfare’ in a manner that is a departure from the rules as they know it. While the plaintiff may be comfortable with the use of electronic media in carrying out its litigation, the court must be satisfied that both parties are placed on an equal footing in respect of the matter before it. It would appear to be that the guarantee of equality would be severely strained by an order in terms of which the plaintiff seeks to impose a virtual trial on the defendants, who have voiced their opposition thereto. It would be unfair to label any of the defendants as being opportunistic for refusing to submit to a trial by electronic means. The situation would have been entirely different if both parties consented to a virtual trial and if the court was satisfied that the matter was sufficiently urgent to warrant it being heard.” (Own emphasis)

The court thus dismissed the application, finding that the plaintiff could not demonstrate why its trial was sufficiently urgent to justify proceeding by way of a remote hearing during the lockdown, against the wishes of the defendants, when considered against the 1 May 2020 Court Practice Directive.

Conclusion

Whilst the judgment was handed down within the context of the Covid 19 pandemic and Court Practice Directives issued specifically to regulate the position during the lockdown period, the ultimate reasoning behind the judgment is that remote hearings are a departure from the norm, to be permitted only in exceptional circumstances, and should not be imposed on a litigant which objects to this mode of hearing.

Whilst it remains to be seen whether other High Courts in the country will adopt the same approach, the rationale adopted in the judgment is unwelcome for proponents of online courts and remote hearings (which includes VH Attorneys). Maintaining the status quo will not only set South Africa against the worldwide trend towards remote court hearings, but also exacerbates the already lengthy delays in having cases finalised through our courts.

 

[1] Union-Swiss (Proprietary) Limited v Govender and Others (5903/2017) [2020] ZAKZDHC 30 (7 August 2020).
[2] S34 of the Constitution reads as follows: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
[3] Amongst others the Disaster Management Act 57 of 2002 and the Regulations issued on 29 April 2020 (GN R480, GG 43258, 29 April 2020) in terms of the Act.
[4] GN R440, GG 43191, 31 March 2020.
[5] GN623, GG 43383, 2 June 2020.
[6] Kwa-Zulu Natal High Court Practice Directive dated 1 May 2020, available at https://juta.co.za/documents/751/KZNHC_Directives_01_May_2020.pdf.