Virtual hearings are here to stay - 1

31 May 2021 00:00 by Dr Hilda Grobler

In the first of four articles which look at what happens when parties refuse to participate virtually, Dr Hilda Grobler summarises responses from the Supreme Court of Appeal (SCA) and the High Court to litigants who believe they have the right to insist on face-to-face hearings. They do not.

Written by Dr Hilda Grobler, Director of Aequitate Dispute Resolution Services (Pty) Ltd, for LexisNexis South Africa

The SCA and the High Court refuse to tolerate objections to virtual hearings

As we head into the third wave of COVID-19, much of the complacency that developed after the second wave has abated, having impacted negatively on the “new normal” with many people still of the view that we should return to the practices of the “good old days”.

It is apparent from the number of judgments that are now coming out of the different courts and dispute resolution fora that some litigants believe they have the right to insist on face-to-face hearings.

The different courts - from the Supreme Court of Appeal (SCA) down to the Labour Court - have, however, been sending these parties packing. These courts heard matters virtually, in line with the COVID-19 regulations.

Recently the SCA proceeded with a virtual hearing despite the fact that one of the parties, Liberty Fighters Network (LFN), which took Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma to court over lockdown regulations in 2020, refused to participate in the virtual proceedings.

Justice Mahomed Navsa left no doubt in the mind of LFN's representative, Reyno de Beer, that the court would not tolerate his insistence that the matter be heard face-to-face, that is, in open court, saying: “If you decide not to participate, that's the end of the matter as far as you are concerned. We will continue to deal with the remaining parties."

In Puma Sports Distributors (Pty) Ltd v Hughes and Others (1820/18) [2020] ZAWCHC 152 (10 November 2020) the court per Rogers J held that there was no reason to grant a postponement because the defendant was in England and could not travel to South Africa due to COVID –19 restrictions.

Despite this finding the trial was postponed for various other reasons. The court said the next presiding judge would determine whether the matter should proceed face-to-face or virtually.

The court held that matters that are not of “such complexity that oral evidence could not conveniently be heard remotely”, could be dispensed with on a virtual platform.

The High Court has left no doubt that face-to-face hearings are so “yesterday” that they could even attract cost orders against parties if they persisted with conduct that was both “unreasonable” and “selfish”, to quote Justice Janse van Nieuwenhuizen of the Gauteng Division, in the Pretoria High Court.

When Justice Janse van Nieuwenhuizen decided that a divorce matter must proceed on a virtual platform, one party refused to see reason. The court made short shrift of this attitude, placing it on record that “the virus had an impact on all spheres of life” before stating that:

“This method has the obvious benefit of limiting the chances of exposing oneself – that is, all persons whose appearance/presence is pertinent to said court proceedings, be it judges, court staff, legal fraternity, witnesses, interested parties or the media – unnecessarily to contracting the virus”. [5]

Parties who insisted on proceeding face-to-face were “unreasonable” and “selfish”. [42]

The court concluded that the plaintiff’s conduct had caused two court days to have been lost and accordingly ordered the plaintiff “to pay the wasted costs”.

The importance of these judgments cannot be underestimated. Virtual proceedings are not only here to stay but are in the interest of all concerned.

Dr Hilda Grobler
Director of Aequitate Dispute Resolution Services (Pty) Ltd

Related articles in the series:

Part 2: Virtual consultations are valid

Part 3: Zoomed out of a job

Part 4: Virtual hearings are here to stay