Adjudication and Mediation

28 Apr 2020 11:12 am

COVID-19 is an epoch-making opportunity to revamp our entire out-dated and adversarial civil procedure so that it is more in line with the principles of Ubuntu and the Constitution.  At the same time we can massively expand access to justice in the digital world to all, including the poor, by using platforms such as Zoom, Microsoft Teams and Skype.

Written by Jacques Joubert, Advocate of the High Court of the Republic of South Africa, for LexisNexis South Africa.

[Durban, 23 April 2020]

The US Supreme Court is to hear cases online to comply with social distancing measures. In the UK courts are also migrating to a digital reality in response to the Covid19 pandemic.

The above courts understand that they cannot fulfil their role as guardians of the law if private citizens have little or no access to justice because of social distancing measures. They realize that keeping the doors of the court physically open during a lockdown is window dressing. It does not translate in actual access to justice during the lockdown.

Section 34 of the Constitution (the right to have a case adjudicated) similarly enjoins our judiciary to take decisive and immediate action and follow the examples set by the US and UK courts. Half measures must be cast aside.

It is hard to imagine for many, especially for the baby boomer generation, what a digital court is, because most of us are unfamiliar and resistant to the digital world of the 4th Industrial Revolution.

In a digital court, the same participants one expects in a courtroom participate in real-time as judges, counsel, attorneys, and witnesses. They are not physically but digitally present where evidence can be led, witnesses cross-examined, and submissions heard.  Everyone can watch online whoever is speaking during the case, be it a witness or a judge.

The public and press are free to join and leave the proceedings online or listen and watch the recorded proceeding later online, saved for posterity.

No one would have guessed two months ago that a microscopic particle, Covid-19, and social distancing measures would pose such profound and exciting challenges to the implementation of Section 34 of our Constitution.

It is also an epoch-making opportunity to revamp our entire out-dated and adversarial civil procedure so that it is more in line with the principles of Ubuntu and the Constitution.  And at the same time massively expand access to justice in the digital world.

I propose that the judiciary begin to dispense justice in the digital world by using platforms such as Zoom, Microsoft Teams or Skype after vetting which of the platforms are reliable and secure enough.

Online platforms are very simple to use and our magistrates and judges should have no difficulty fulfilling their roles effectively during online hearings.

Of course, not everyone has access to the digital world and the poor and vulnerable will be discriminated against if the courts go online. This concern, however, is tempered when they are legally represented, and their lawyers have and are able to give them access to the digital world.

It remains necessary, however, that judges and magistrates remain on standby to hear the cases in the physical realm when online adjudication is not practical and Section 34 rights stand the risk of being violated.

Covid19 has made free high-speed Internet to under resourced communities a compelling human rights issue. Joint action and implementation by government and the private sector is necessary.

The correct question to ask is how do we minimise human contact between relative strangers in the physical world. The answer is digital but not without a Marshal Plan for the poorest of South Africans.

To clear an overloaded case roll, I propose an online court system that, in line with the new High Court Rule 41A, would guide litigants first to online mediation. But they may of course opt out of mediation as long as they are willing to give their reasons. These reasons, if found wanting later by a trial court may result in adverse cost orders.

The online mediator schedules the mediation online and meets the litigants and their attorneys in a private and confidential digital room. Everyone calls in from different physical locations and may have private conversations with their own team during the mediation. It creates a hub of online, interactive and collaborative problem-solving taking place in real time.

If the mediation does not resolve the dispute, the litigants are free to pursue justice in a digital or real court as prescribed by Section 34.

The digital meeting platform, Zoom, has captured the world’s imagination despite its detractors who say that the platform is not safe from hacking. They may be right, but Zoom appears to be fixing its security issues.  Zoom's function of private breakout rooms makes it ideal for mediation and so mediators in South Africa could begin to market their services to all English-speaking nations who choose to participate in the digital world.

John F Kennedy pointed out that “the Chinese use two brush strokes to write the word 'crisis.' One brush stroke stands for danger; the other for opportunity. In a crisis, be aware of the danger--but recognize the opportunity.”

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