by Belinda Scriba and Simone Nel
The unprecedented COVID-19 pandemic, and the consequent lockdown levels, affected every aspect of life as we knew it – and the legal fraternity was no exception. Despite courts being considered an essential service since the first Alert Level 4 lockdown in 2020, court processes in South Africa had to rapidly change and recalibrate to adapt to the so-called “new norm”. This was only made possible through the implementation of digital platforms.
Prior to mandatory lockdowns there were major discrepancies in the reception of the “digital age” within the legal fraternity, with many being distrustful of the possibilities introduced as a result of technology. In their minds “flexi-hours”, “working from home”, “hot desks”, “service via email” and “online consultations” were distrustful phrases which the legal fraternity in South Africa was not yet ready for.
Then…rumours of a global health crisis started to spread, and within a few months South Africa found itself in “hard” (Alert Level 5) lockdown. There was no longer a choice. Go digital or be left behind.
Fortunately, there had already been some significant shifts towards transitioning to digital, which allowed some fast-tracking of the much-required move of our judicial system online.
High Court Rules
In 2012 already the High Court Rules had introduced the option of servicing court processes via email (Uniform Rule 4A). This mode of service has, however, become “normal” since the introduction of COVID-19 mandatory (and later preferred) “stay at home” laws.
With respect to filing of court proceedings during “Covid-times”, thankfully, the Gauteng High Court had also been making plans to introduce CaseLines, an electronic case management and litigation system. CaseLines was considered even before whispers of possible lockdowns began to circulate, and as a result of a practice note issued by the Judge President on 10 January 2020, the Gauteng High Court was the first court in the country to fully implement CaseLines. The system has been operational in Gauteng since 27 January 2020. The introduction of CaseLines provides legal practitioners with the ability to enrol new civil matters, and subsequently file documents and present evidence, electronically in the Gauteng High Court. CaseLines is developed in a manner that enables users to present fully digital court bundles and provides options for involved parties to interact and collaborate in pre-trial preparation and procedures.
Despite some initial challenges, which are to be expected with the implementation of any new system, CaseLines provides many solutions to problems otherwise faced in a traditional paper-based system. Judges are able to easily access a fully electronic version of a court file prior to the hearing of a matter, and virtual hearings can be set up, even during a lockdown.
CaseLines has been successfully implemented in other international jurisdictions, such as the UK, where it has been the selected tool of digitisation of the Crown Court, and the United Arab Emirates, which substantiates its efficiency as a digital justice tool. The Court of Justice for the Common Market for Eastern and Southern Africa (COMESA) implemented the use of CaseLines in 2019 to ensure that COMESA fulfils its goal of digital economic integration. The rise of digital justice systems has been commended as aligning with the United Nations Sustainable Development Goal 16 as it has the ability to transform the quality and efficiency of justice across Africa and contributes to the rule of law at large.
Unfortunately, in our other courts where CaseLines has not yet been implemented, different strategies has to be devised to circumvent the lack of access to court caused by lockdown restrictions. Thanks to email, these courts were able to adapt to allow filing by email. Although this did come with its own issues, especially with it being much more cumbersome than the instant access to online documents CaseLines offers.
Considering the success of CaseLines in the Gauteng High Court, it is guaranteed that it will be implemented in more jurisdictions. In fact, it has been announced that CaseLines will be rolled out in the Western Cape High Court imminently.
It has also been noted by academics and practitioners that CaseLines will increase efficiency, spearhead the legal profession towards sustainability, and improve access to courts, thereby promoting constitutionally entrenched rights in this regard.
Even though digitisation has been forced on us, many practitioners, even the traditional naysayers, have welcomed the era of digitisation and recognised that South African courts are now becoming more in line with the approach in other jurisdictions.
With or without access to CaseLines, as a result of the lockdowns, most, if not all, of South Africa’s High Courts introduced virtual hearings and handing down of electronic judgments into their practice directives. Both the Supreme Court of Appeal and the Constitutional Court are using video conferencing facilities to hold hearings. There are numerous platforms that allow this, the most popular of which are Zoom, Skype and Microsoft Teams.
The Constitutional Court also live streams its hearings on its YouTube channel, which ensures transparency and public access (albeit virtually).
With access to physical office space being limited for almost a year and a half now, practitioners are also consulting with one another and their clients electronically.
There are many positive elements to the digitisation of dispute resolution procedures such as reduced costs, the ability of parties to conduct hearings without the need for traveling to physically attend hearings or to access case material. Other related costs such as the printing, copying and transportation of physical files are also reduced. The opportunities for growth and improvement seem to outweigh the potential negative consequences of the traditional paper-based system such as missing files, unintentional environmental unsustainability and even far more dire things like fraud. With an electronic justice system, files can be easily traced, what occurred last in the matter can be accessed quickly and if a file cannot be located, the person responsible for the file can be identified. CaseLines also addresses some logistical challenges which may be faced by judges when reviewing documents that have been filed in different courts and thereby removes additional infrastructural barriers and ensures increased efficiency of civil litigation. In South Africa, there has been positive feedback as practitioners no longer have to face challenges such as missing court files or files being provided to the incorrect judge.
It is incontrovertible that virtual inter-personal access and live streaming have revolutionised dispute resolution procedures. It is evident that is possible to use digital platforms without compromising on the principles of open justice and transparency which underlie our democracy and legal system.
As expected with any developments in practice, there are opportunities and potential challenges with an electronic judicial system and processes. Technology presents unique challenges such as potential technical errors, connectivity issues as well as lack of knowledge of individual practitioners as to how to utilise certain digital platforms.
It is important to acknowledge that these obstacles are not insurmountable. Training on the use of CaseLines is available to legal practitioners, to ensure the smooth functioning of the system. The South African judiciary is in the process of developing rules and guidelines relating to the new electronic court system. Well-known legal resource LexisNexis, with the endorsement of the Department of Justice, has supported this development by providing 16 courts across the country with Wi-Fi connectivity to ensure the optimal functionality of a digital system.
Alternative dispute resolution
The adjustments to the court process have naturally flowed over to alternative dispute resolution processes such as arbitration and mediation.
On a global level, the International Chamber of Commerce, amongst others, has provide a guidance note which addresses multiple aspects of alternative dispute resolution such as new procedural measures and timetables, potential delays, guidance on virtual hearings and cyber-protocol. Local arbitrations conducted in terms of the rules of The Arbitration Foundation of Southern Africa have further been the subject of updated procedures which ensure that the arbitration of disputes remain possible in a virtual era. Parties to commercial contracts are advised to include clauses which provide for the adjusted processes, procedures and rules of both court litigation as well as alternative dispute resolution to ensure that disputes, when they arise, are dealt with in the intended manner.
The use of digital tools within the legal field has the potential to remove many practical and financial barriers to justice which are prevalent especially on the African continent and in South Africa specifically. Since access to justice and the courts are constitutionally entrenched rights, the COVID-19 pandemic, coupled with its restrictions and effects, has accelerated the technological innovation process and demanded that the legal system adjust accordingly. Significantly, and ironically, COVID-19 has forced the South African judicial system to embrace the “digital era”, making justice more accessible while reducing its carbon footprint. It’s good to know that something positive has come of this devastating pandemic.