School of Law

The COVID-19 pandemic has had a catastrophic effect on so many aspects of our lives – including access to justice.

The contradictory directives that have been issued, and amended and replaced on a regular basis show that the courts and the justice ministry were completely blindsided by the national emergency. In the USA, there was a task team which published “Guidelines for Pandemic: Emergency Preparedness and Planning: A Roadmap for the Courts” way back in 2007.

While the Chief Justice, the Honourable Mogoeng Mogoeng, has shown some support for e-justice, it has not gone far enough. Effectively, the courts have shut their doors and ground to a halt except for limited, exceptional, urgent cases.

Professor Dr Omphemetse S. Sibanda said that the “courts must remain accessible – even [through] e-courts.” The Chief Justice even said, initially, that it would be “myopic” to shut the courts down. When he later did in fact basically shut the courts down, he did add that the heads of the individual courts had a discretion to authorize the hearing of matters through teleconferencing or videoconferencing or other electronic means which would obviate physical attendance at court. Sadly, none of the courts have done this.

This is somewhat surprising since there are a number of cases where videoconferencing has been successfully used in South Africa in the recent past.

Other notable jurisdictions have continued hearing cases remotely. In the UK, the Chief Justice announced that they had put in place videoconferencing facilities to enable cases to proceed by videoconference or similar electronic means. They have also made provision for the public to be able to view those proceedings, in line with the general requirement that court proceedings be public. The Coronavirus Bill, soon to become law, expands on conducting judicial processes remotely in the UK. In the USA, more than a dozen Federal Courts have authorized the use of video and teleconferencing technology to continue hearing cases. The Coronavirus Aid Relief and Security Act supports this. In Dubai, courts are proceeding remotely. Likewise in India where evidence by videoconferencing is well established as a means to promote efficiency and access to justice. The Indian courts have developed principles governing remote hearings over a period of about fifteen years. In Australia, the Federal Court is putting in place the technology to enable all hearings to proceed remotely. They are promoting the use of “Microsoft Teams” as the platform for the proceedings, and have published a dummies guide to virtual hearings and the use of “Microsoft Teams.” They have acknowledged than an obstacle to the 100% roll out of virtual hearings will be that not all people have access to online facilities. This would obviously be a significant problem in South Africa, especially as regards unrepresented litigants.

Despite their somewhat dubious human rights record, it must be acknowledged that China is by far the international leader in the use of virtual courts. The use of online virtual facilities is encouraged in all courts, and there are regulations governing the conduct of virtual trials. The regulations deal with things like identity authentication. Parties and witnesses appearing remotely must show their national identity document and face recognition software is then used to confirm the identity of the court participant. China also has three specialist “internet courts” which deal with internet-related disputes, such as disputes arising out of online shopping transactions, personality rights in cyberspace, cyber-crime and so on. Their mantra is “online disputes tried online.” The internet courts use big data, cloud computing, artificial intelligence and block-chain technology to streamline their court processes. The initiative, a global first, has been a big success, showing remarkable efficiency. An indicator of the success of these courts is the very low number of appeals against its judgements compared to cases in the ordinary courts. Everything is overseen by human judges, but virtual judges process the routine, repetitive administrative tasks. For example a virtual judge will simply record whether there is an objection to the admission of a certain piece of evidence or not. A real judge will decide the question of admissibility, if it is disputed. The majority of the evidence placed before the internet courts is block-chain authenticated documentary evidence. A big data system collects, collates and analyses information from millions of cases across China. It is updated every five minutes. By the end of 2019, 193 million cases had been collected, and 700 thematic analyses conducted. Block-chain technology has been formally recognized by the Supreme People’s Court of China as reliably authenticating evidence. This is because it generates immutable, time stamped data that can be verified by audit. China has published a White Paper on internet justice, which includes exemplar judgements coming out of the internet courts.

In one of the recent South African cases where the High Court allowed witnesses to testify via video-link, the judge remarked that South Africa lags behind the rest of the world in not having a legislative framework for remote court proceedings. Professor Dr Omphemetse S. Sibanda criticized the courts for not going “full blast” on e-justice at this time of crisis, and remarked that only “tortoise-steps” were being taken towards this end. We have never needed that framework, and buy-in to the concept of remote hearings, more badly than we do now.

While the COVID-19 global disaster is unprecedented and novel, and is causing incalculable suffering, it provided a valuable opportunity for the justice system to fully embrace and support the use of technology to continue delivering essential services to the people of South Africa. The right to have disputes fairly adjudicated by the courts is a fundamental constitutional right. It can only be limited when there is no other reasonable means of achieving the objective behind the limitation of the right. The health and safety of the court participants could have been achieved through conducting remote hearings. It is unfortunate that this is not being done in as many cases as possible, challenging though it would have been.