Legal practitioners are creatures of tradition and certainty. They prefer all rules to be codified and all legislation to be clear. They yearn for certainty and frown upon ambiguity within contracts, laws and especially legal proceedings. Thus there is a call for the codification of video conferencing, through video links, within the Uniform Rules of Court.

While there is widespread acceptance of video conferencing through video links within court proceedings reflected in South African case law, legislation and Court Rules need amending to facilitate a codified and structured method for practitioners to use video conferencing in court, instead of  having to rely on precedents.

Precedents in South African case law

South African cases, such as MK v Transnet Ltd t/a Portnet and Randgold and Exploration Company Limited v Gold Fields Operations Limited and others, have already provided precedents for video conferences via video links and how they can operate and be effected within South African legal proceedings.

MK v Transnet Ltd t/a Portnet

MK v Transnet Ltd t/a Portnet, hereafter referred to as the Transnet case, saw an application being brought before the court to allow the applicant to appear as a witness via video conferencing.

The facts are as follows:

The applicant’s husband had passed away in a collision while in South Africa on business. His wife (“the applicant”) sought compensation for the loss of support her husband had offered her on a monthly basis:

“The application is to grant permission for the applicant to testify from the premises of DAA Montenegro LLC in Yugoslavia, by way of a video conference link, availing to the respondent an opportunity to appoint legal representatives to monitor and be present during the process. It entails that the applicant’s attorneys of record will arrange for the video conference link to be set up at the offices of Shepstone and Wylie or any other place so agreed to by the court in order for the presiding officer and the legal representatives of the respondent to be present during the process.”

This application was brought via affidavit which sought to underline factors in support of the application for a video conference. The affidavit stated that a video conference would be best, owing to the applicant’s ill health, her inability to travel due to her financial status and her age. The affidavit was accompanied by statements from two expert witnesses, who were doctors. They stated that the applicant’s state of health would not allow for long distance travelling and that the exposure to stresses which accompanied situations such as trials would not be good for the applicant’s health.

Opposition from the Respondent

The respondent strongly opposed this application, highlighting that there is no allowance for such a procedure within the Uniform Rules of Court and that no court may simply create and apply their own procedural rules in order to facilitate such applications.

The party then went further to analyse Rules 38(2)–(3), of the Uniform Rules of Court, in order to establish whether the applicant had in fact made out such a case in order to facilitate the application for video conferencing.

Rules 38(2)–(3) of the Uniform Rules of Court reads as follows:

“(2) The witnesses at the trial of any action shall be examined ‘viva voce’, but a court may at any time, for sufficient reason, order that all or any of the evidence to be adduced at any trial be given on affidavit or that the affidavit of any witness be read at the hearing, on such terms and conditions as to it may seem meet: Provided that where it appears to the court that any other party reasonably requires the attendance of a witness for cross-examination, and such witness can be produced, the evidence of such witness shall not be given on affidavit.”

An examination “viva voce” means that witnesses must submit to an oral examination. This oral examination is conducted at a trial before a judge and all parties to legal proceedings. This rule ensures that the parties are treated equally and offered the right to fair proceedings.

“(3) A court may, on application on notice in any matter where it appears convenient or necessary for the purposes of justice, make an order for taking the evidence of a witness before or during the trial before a commissioner of the court, and permit any party to any such matter to use such deposition in evidence on such terms, if any, as to it seems meet, and in particular may order that such evidence shall be taken only after the close of pleadings or only after the giving of discovery or the furnishing of any particulars in the action.”

Looking to rule 38(3) which sets out circumstances where a court may deviate from Rule 38(2) and allow evidence to be given before a commissioner in High Court proceedings is equivalent to section 53 of the Magistrates Act which allows for evidence on commission in the Magistrate Courts for civil proceedings.

Evidence on commission is basically a procedure where a witness is allowed to give oral evidence before a magistrate within their jurisdiction, due the fact that they are unable to make it to the proceedings which are taking place in another jurisdiction. This process seeks to avoid unnecessary delays and costs when witnesses are unable to make it to the proceedings. Evidence on commission is also applicable in criminal proceedings under section 171(1)(a) of the CPA.

The main issue when it comes to using evidence on commission is that the presiding officer to the proceedings is unable to access the credibility and demeanour of the witness, however, the general rule is that evidence on commission is better than no evidence at all.

In the Transnet case the respondents argued that the applicant had to be present, as a judge cannot assess the witness’ credibility and demeanour and thus the applicant’s physical presence was necessary.

View of Presiding Officer:  A novelty to be embraced

The presiding officer Mbatha J stated:

“Giving evidence through video link and other social media mechanisms is a novelty in South Africa, save to a very limited extent in the criminal courts. Technology is at this stage of our lives so advanced to a point that direct evidence can be taken from a witness in another country and cross-examination can take place whilst the witness is visible to all. The Electronic Communications and Transactions Act4 (‘the ECTA‘) which forms part of our legislation regulates the use of electronic communications, with the exception of video link communications.”

Judge Mbatha makes some practically pertinent observations above. She points out that video conferencing is still new to South Africa, thus courts have very little experience in how to handle such applications, with ECTA not offering much help in dealing with video conference linkage to courtrooms.

She notes how technology has advanced to the point where one can now question and cross-examine witnesses in real time. Thus, the idea is that through a virtual presence, courts can now assess a witness’ credibility and demeanour as they will be virtually present throughout their testimony for all parties to see and assess. Thus, superseding any issues surrounding the inability to assess the witnesses’ demeanour and the requirement that all witnesses need to be present for all parties to assess.

Mbatha J went on to assess whether the loss of evidence caused by the applicant’s potential death and other factors out-weighed the need for physical appearance. She concluded by referring to section 173 of the Constitution which states:

“The Constitutional Court, Supreme Court of Appeal and High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.”

The fact that an application should be dismissed based on the fact that South Africa’s Uniform Rules of Court have failed to facilitate novel applications such as the one in the Transnet case is a clear and blatant violation of section 34 of the Constitution.

Section 34 reads as follows:

“Everyone has a right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial forum.”

Mbatha J went on to say:

“I find that the absence of such rules should not prevent this court from considering the application.  The hearing with the aid of a video link conference will be a public hearing in a court of law, where all the parties will be appearing before a judge seized with the matter. I cannot see why such evidence cannot be admissible in any court of law.”

Thus, the Transnet case allowed the application for a video conference link to be used in civil proceedings for determination of quantum damages due to the applicant.

However, the Transnet case still required the physical presence of legal practitioners and presiding officers alike, in order to maintain the traditional culture within South African courts as opposed to a fully-fledged virtual courtroom system.

Randgold case

In the more recent case of Randgold and Exploration Company Limited v Gold Fields Operations Limited and others, hereafter referred to as Randgold, the main issue is not whether the court should allow for the use of video links in court proceedings, but an example of courts being more amicable to making allowance for the use of video linking within court proceedings where it does not hinder foreign laws.

The Randgold case dealt with an issue of compelled evidence for foreign nationals. The court had to decide whether an application for compelled evidence via video link should be allowed. Although the court turned on the point that the foreign jurisdiction in question did not allow for compelled evidence, Judge Opperman did mention that, had it been an application for voluntary evidence via video link, the matter would have succeeded. But a South African court cannot compel foreign nationals to give evidence in any form where a foreign jurisdiction does not allow for it.

Codification of video conferencing via video links within legislation will create certainty

South African courts have accepted and begun to implement the use of video conferencing within legal proceedings. However, South African legislation remains stagnated by failing to offer a codified mechanism within legislation that governs the application and use of video conferencing within court proceedings. Codification will allow for certainty amongst practitioners.

Currently evidence can be given, without any inherent jurisdiction, through the rules of the Magistrates Court along with provisions of the Labour Relations Act 66 of 1995 and the Small Claims Court and if international arbitration proceedings allow this.

More recently the additional Rule 37A(10) which discusses the requirements for pre-trial procedure reads as follows:

“37A(10)  The matters that the parties must address at the pre-trial meeting to be held in terms of subrule (7) are as follows:

(a) The matters set forth in rules 35, 36 and 37 (6);

(b) the soliciting of admissions and the making of enquiries from and by the parties with a view to narrowing the issues or curtailing the need for oral evidence;

(c) the time periods within which the parties propose that any matters outstanding in order to bring the case to trial readiness will be undertaken;

(d) subject to rule 36 (9), the instruction of witnesses to give expert evidence and the feasibility and reasonableness in the circumstances of the case that a single joint expert be appointed by the parties in respect of any issue;

(e) the identity of the witnesses they intend to call and, in broad terms, the nature of the evidence to be given by each such witness;

(f) the possibility of referring the matter to a referee in terms of section 38 of the Act;

(g) the discovery of electronic documents in the possession of a server or other storage device;

(h) the taking of evidence by video conference;

(i) suitable trial dates and the estimated duration of the trial; and

(j) any other matter germane to expediting the trial-readiness of the case.”

Dealing specifically with rule 37A(10)(h), which reads as follows:

“Rule37A(10)

. . . 

(h) the taking of evidence by video conference;

 . . .”

Rule 37A(10) is a list of pre-trial requirements practitioners need to undertake in order to be compliant with court proceedings. One of these requirements is Rule 37A(10)(h), which requires that practitioners need to disclose whether or not there will be a video conference used within proceedings.

This means that practitioners must now stipulate whether they seek to use video conferencing within legal proceedings, however, this on its own is insufficient. Legislators have not provided a codified method in which video conferencing will be held.

Are there specifications for applications to use video linking that must be adhered to? What procedure will govern the use of video conferencing? Lastly which party will incur the costs for use of video conferencing, the requesting party or the party at fault?

Rule 37A(10) and the Transnet case are milestones in South African procedural law that are opening up the prospect of virtual courtrooms and acceptance of the use of technology within legal practice in order to facilitate the ends of justice and uphold the Rule of Law. However, it would be better if a clear codified method was added so that practitioners seeking to use video conferencing within trials could follow a clear and concise set of rules for the set-up of and application of a video conference, including rules governing the costs attached.

Written By Chanté Botha, Legal Content Editor at LexisNexis South Africa