ONLINE LITIGATION – PREPARING FOR THE NEW NORMAL

Access to justice and the courts are constitutionally entrenched rights. Rights that the legal profession assists in protecting and upholding. The COVID-19 pandemic and lockdown restrictions accelerated the technological innovation process and required the legal system to therefore adjust in order to protect these entrenched rights. COVID-19 forced the South African judicial system to embrace the digital era, in effect making justice more accessible.

The COVID-19 pandemic, and the consequent lockdown levels, affected every aspect of life as we knew it – and the legal fraternity was by no means an exception. Despite courts being considered an essential service from the beginning of 2020, court processes had to evolve quickly to adapt to the new normal. There was no choice. Adapt or be left behind. This adaption was made possible through digital platforms. Fortunately, there had already been some significant shifts transitioning to digital, which allowed the speedier move of our judicial system online.

In 2012 already the High Court Rules (Uniform Rule 4A) introduced the option of serving court processes via email. This mode of service then became the norm since the COVID-19 mandatory lockdown laws. The Gauteng High Court had also been making plans to introduce CaseLines, an electronic case management and litigation system. CaseLines was considered even before rumours of possible lockdowns began to circulate. The Gauteng High Court as a result of a practice note issued by the Judge President on 10 January 2020 was the first court in the country to fully implement CaseLines.  CaseLines provides legal practitioners with the ability to enrol new civil matters and 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.

This system has been successfully implemented in other international jurisdictions, such as the UK and the United Arab Emirates. 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 the traditional 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 pandemic with the associated restrictions. 

In courts where CaseLines had not yet been implemented different strategies had to be devised to navigate the lack of access to court caused by lockdown restrictions. Electronic mail technology allowed these courts to adapt by filing by email. This method however brought its own issues.

Considering the success of CaseLines in the Gauteng High Court, it will most likely be implemented in more jurisdictions and levels of the judicial system. CaseLines will increase efficiency, move the legal profession towards sustainability, and improve access to justice, thereby promoting these constitutionally entrenched rights.

As a result of the pandemic lockdowns, most, if not all, of South Africa’s High Courts introduced virtual hearings and handing down of electronic judgments into their practice directives some with the use of CaseLines and others without.  The Supreme Court of Appeal and the Constitutional Court are using video conferencing facilities to hold hearings.  There are numerous platforms that can facilitate virtual hearings, such as Microsoft Teams, Zoom, and Skype. With access to physical office space being limited for almost a year and a half, practitioners started consulting with one another and their clients electronically. This trend has now continued due to ease of use, saving on travel time and costs and increasing productivity.

Although digitisation has been forced on many practitioners and the South African courts due to the pandemic, it is seen as our legal system aligning more with the approach in other jurisdictions.

There are many positive elements to the digitisation of dispute resolution procedures such as reduced costs, and the ability of parties to conduct hearings without the need for travelling to physically attend hearings or to access case material. Other related costs such as the printing, copying and transportation of physical files are also removed. The opportunities for growth and improvement seem to outweigh the potential negative consequences of the traditional paper-based system.  CaseLines being a cloud-based system, due to its design addresses some logistical challenges which are faced by judges when reviewing documents that have been filed in different courts and thus removes additional infrastructural barriers and increases the efficiency of civil litigation.  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 presiding officer. Virtual interpersonal access and live streaming have revolutionised dispute resolution procedures.  It is possible to use digital platforms without compromising on the principles of open justice and transparency which underlie our democracy and legal system.

With any developments, there are always opportunities and challenges. 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. The use of digital tools within the legal field however has the potential to remove many practical and financial barriers to justice which are prevalent in South Africa and thus the potential benefits outweigh the challenges.

These challenges in any event are not insurmountable. Training is always available. This development also reminds us that legal practitioners need to be lifelong learners as the law and methods of application and implementation of same are not static. We, therefore, need to grow with the changes in order to serve the public as best as possible. It is therefore imperative that the legal practitioners of the future study and train with institutions of higher learning that are forward and future-focused. Covering the latest legal developments as well as developing an enquiring mind in the learner to ensure that they are work ready and able to adapt to the evolving landscape easily. Adaptability and the ability to learn new skills easily are imperative in the new normal. These skills are becoming even more important than the traditional skills of learning theory which is now largely available at one’s fingertips.   

COVID-19 has indeed been the catalyst needed to catapult the country towards paperless digital courtrooms which will allow presiding offices and legal practitioners to work more effectively in a secure online and virtual environment. Leveraging technology can only improve the role of the courts as guardians of South Africa’s Rule of Law.

(Originally published in De Rebus)