Virtual hearings are here to stay - 4

In the fourth of four articles which look at what happens when parties refuse to participate virtually, Dr Hilda Grobler discusses why there are no valid reasons for hearings not to be held virtually, in order to ensure that courts and other fora remain functional.

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

Virtual hearings are here to stay: There are no insurmountable obstacles to virtual hearings

In 2020 open hearings in court and other fora were discouraged in the light of the Covid-19 pandemic and proceeded successfully on virtual platforms like Zoom and Microsoft Teams.

Despite the fact that virtual hearings enable parties to participate safely from a chosen and well-ventilated space guaranteeing social distance and without wearing masks, there was still some resistance to embracing the new normal.

The decision in the matter of Union-Swiss (Proprietary) Limited V Govender and Others which was handed down by the High Court in Durban on 7 August 2020, has put paid to many of the arguments relied on in an attempt to ensure that matters would continue to proceed only in an open, face-to-face court.

The Court agreed with the plaintiff that “in the present circumstances of the pandemic, a party is not entitled to demand a normal hearing in open court” and held that our courts “have equally embraced internet technology to discharge their constitutional obligation of ensuring that justice is dispensed”.

In response to the argument that a party should be able to cross-examine witnesses whilst enjoying the “benefit of being steeped in the atmosphere (of the court) and having the right to make valid and informed credibility findings”, the court questioned whether it was being suggested that a witness would provide a different version when testifying in, and because of the imposing court building itself, as opposed to when answering on a virtual platform.

The court per Chetty J rejected this argument and added that the court was not persuaded “that it would not be possible to assess the demeanour of the witness through a trial conducted by electronic means. [and that] I am also not persuaded by any suggestion that a trial by electronic means infringes on the right of a litigant to confront a witness, or put forward the version of the defendant.”

The court further rejected the argument that Internet connectivity is “patchy” and subject to load shedding as a reason why it would not be possible to “physically observe the demeanour of the witnesses”. It quoted with approval from an Australian judgment that held “the judge may have a better opportunity of making these observations of a witness when they are captured on camera”.

Nothing could be better proof of the successful use of videoconferencing technology for hearing evidence or cross-examining witnesses than the fact that Canada has used this platform during civil trials for the past 10 years.

In essence the court rejected the practical difficulties listed in opposing a virtual hearing, finding that such difficulties were not insurmountable.

It is of particular interest to dispute resolution matters that the court held that other countries have embraced online dispute resolution (ODR), particularly in labour matters.  It quoted from an Australian judgment to emphasise that

‘. . . these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try’.

The importance of this judgment is that the court in essence rejected the practical difficulties a party may list in opposing a virtual hearing, finding that such difficulties were not insurmountable[1]. It not only confirmed that effect must be given to the directives issued by the Minister of Justice, the Chief Justice and various Judge Presidents, but also acknowledged that a trial may proceed by way of an online platform in line with section 8(3) of the Superior Courts Act of 2013.

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

[1] The Court, however, granted the postponement on a totally different point when it held that it would be unfair to proceed after the defendants objected to proceeding electronically. Some 8 months later the Supreme Court of Appeal proceeded despite the objection of one of the parties to participate virtually, and did so to the exclusion of Liberty Fighters Network when the Cooperative Governance and Traditional Affairs Minister appealed against the finding that the lockdown rules were unconstitutional.

Related articles in the series:

Part 1: The SCA and the High Court refuse to tolerate objections to virtual hearings

Part 2: Virtual consultations are valid

Part 3: Zoomed out of a job