These are no ordinary times as we experience somewhat of a rare phenomenon: a pandemic that has brought the entire world to a standstill and caused companies to rethink and overhaul their businesses. The legal fraternity has not been spared, with lawyers and courts having to adjust to a new way of doing things.
In a letter addressed to legal practitioners, the Supreme Court of Appeal (“SCA”) confirmed that it has resolved not to conduct physical hearings in May 2020 but that hearings will rather proceed via web-based video conferencing. With courts globally having found it necessary to conduct their business remotely, South Africa is no exception and has had to jump on the proverbial bandwagon.
Although this is partly a culmination of years of deliberations about courts digitally transforming, it is a transformation that has been catalyzed by the Covid-19 pandemic. Nonetheless, the sudden digital transformation is imperative for judicial reform, as well as to alleviate any backlog as a result of the nation-wide lockdown. The justice system in South Africa, pre-Covid-19, was already under considerable strain and the thinking around virtual courts is to ensure that services offered by the courts to the public can still be provided unhindered with circumstances that have added to the considerable strain on the justice system being controlled.
While the transition from physical hearings to virtual hearings in some countries such as China and Singapore may appear to have been seamless, in South Africa we face unique challenges. At the very top is our glaringly unequal society, something Covid-19 has magnified. In an unequal society such as ours, how do we ensure that the constitutional right to access to justice for everyone is upheld? Where data prices are exorbitant and internet access is limited, how do we ensure that years of progress towards access to justice for all is not undone? How do we protect the marginalized in society from being technically compromised because their economic standing does not afford them access to virtual courts? There are no easy answers, but we cannot allow a two-class legal system between those that can access virtual courts receiving justice and those that cannot. Technology should not be a barrier to anyone having their day in court.
With that said, the approach taken by the courts is a much needed one as the wheels of justice must keep turning. There is also a need for this kind of judicial reform, at a time like this, as a lot is expected from the courts and the judges to continue delivering key services to protect the public and maintain confidence in the justice system. When done right, virtual courts could be one of the most cost-effective ways of promoting access to justice, if the right mechanisms are put in place to support those that cannot afford access. Where technological infrastructure is provided then this should enhance access for all.
The next few months will be telling for the courts. The introduction of remote trials and hearings will be no easy feat and at all times courts should enhance public trust in the judiciary by ensuring that equal access to courts and justice is not compromised. Furthermore, courts will need to ensure that the necessary infrastructure is put in place to provide security where cyber security can threaten the integrity of virtual proceedings. If anything, if done right, the use of technology should increase the courts quality of services, their accountability and transparency.
The International Court of Arbitration has issued a guidance note to courts around the world offering guidance on how to navigate this virtual reality and offering a comparison of virtual platforms that can be used to ensure that security is achieved, and quality services are provided. The trial and error period should then set in place mechanisms that will see the courts of the future being efficient and adding value in civic education by making courtrooms more accessible to the public.
Lebogang George, Consultant, Tumbo Scott Inc.