COVID-19 lockdown gently nudges court procedure into the 4th industrial revolution
Updated: Sep 8, 2020
Authors: Kylie Slambert – Associate & Yuri Tangur – Candidate Attorney
The coronavirus pandemic has begun to test the court system and curtailed most of its work, although it has endeavoured to continue operations to a limited extent. This period may be an unlikely but promising opportunity for the courts to catch up to the technological era.
High Court: Gauteng Division
In the Judge President’s Directive issued on 25 March 2020 dealing with the special arrangements to address the COVID-19 implications for litigation, the Judge President advised that during the lockdown period, the Court will be open to hearing urgent matters only. Similarly, concerning new case numbers and new matters to be enrolled, only urgent matters will be entertained. The Urgent Court shall operate in the same manner as urgent applications dealt with after Court hours. Papers will be uploaded on CaseLines or sent by email. Where this is not possible, physical papers may be delivered. Orders of the court will be communicated by CaseLines or email. Parties (in urgent matters) may agree to vary the rules to facilitate the electronic exchange of papers and condonation will be granted ipso facto. All other matters enrolled from 27 March to 17 April 2020 are removed from the roll.
At first read, limiting this to urgent matters seems like a missed opportunity. However, laudably, the courts are trying something new with due consideration to health and safety with a smaller amount of matters rather than taking the risk of trying these advances with the regular caseload.
Gauteng had already been moving toward a more digital system and was more prepared. The High Courts of Kwazulu-Natal and the Western Cape will be open for urgent matters but there was no mention yet of digital platforms. More could be done and hopefully the directives will change during the lockdown to ensure that more matters are heard as it is not inconceivable that the lockdown period may be extended.
In the Labour Court, no matters will be allocated for hearing and matters already allocated have been removed from the roll. No judges will be available at court and no staff members will be available to receive documents. Parties who have urgent matters need to contact the registrar, who will contact the Judge on duty to ask whether (s)he would consider the matter. If the matter is considered, it will be done telephonically and documents will be served and filed by email.
Although it is commendable that the court remains open for urgent matters, the current directives seem like a missed opportunity especially considering that the Labour Court, arguably, has a slightly lesser caseload than the High Court. The wheels of the court system could have continued to turn more swiftly if the court was open to hearings by other means such as video conferencing and was open to hearing more matters.
The CCMA will operate minimally during the lockdown period. It remains open for general enquiries by telephone, email and social media; and Temporary Relief Scheme (TERS) applications will be done electronically.
Further direction from above
The Minister of Justice and Correctional Services after consultation with the Chief Justice issued further directions on the 26th of March 2020. These state that cases not identified as urgent or essential shall not be placed on the court roll, but that Heads of Court have the discretion to authorise hearings through any electronic means.
Time limits imposed by rules of court have been suspended and will recommence after termination/lapsing of the National State of Disaster although judicial officers have the discretion to determine otherwise in urgent and essential cases. Overall, judicial officers retain the discretion to deviate from the directions in the interest of justice.
There is no doubt that urgent matters do take priority, but the court system could also accommodate more matters electronically – in the interests of justice and to keep the wheels of the court system turning.
Obstacles to overcome
Litigating in the courts remotely requires technology, which is an obstacle that participants to a private arbitration might not experience. If a court decides it will only hear matters by video conference, then participants would need access to this technology. Given the socioeconomic make-up of our country, it is not a given that everyone has such access. This may explain why the courts have decided on flexibility when it comes to electronic mediums, and why the CCMA and the Labour Court have decided to only focus on basic electronic forms for the sake of efficiency and access to all. It is a laudable start and if it proves successful, may lead to permanent directives in some form.
There may be other challenges that arise from the doctrine of effectiveness in civil matters which is why these directives may have been limited to urgent matters, but that will be dealt with on a case by case basis. Overall, it seems that there is no universal system and courts have been developing strategies to suit their geographical context.
The court system has made laudable technological advances during this lockdown period. There will be challenges and the courts are likely to adjust. Although more can be done, the courts’ actions now could set the tone for their future role in the 4th industrial revolution.
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