Online litigation – preparing for the new normal

August 1st, 2023
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Access to justice and the courts are constitutionally entrenched rights. Rights that the legal profession assists in protecting and upholding. The COVID-19 pandemic and lockdown restrictions accelerated the technological innovation process and required the legal system to adjust in order to protect these entrenched rights. The COVID-19 pandemic forced the South African judicial system to embrace the digital era, in making justice more accessible.

The COVID-19 pandemic, and the consequent lockdown levels, affected every aspect of life as we knew it – and the legal fraternity was by no means an exception. Despite courts being considered an essential service from the beginning of 2020, court processes had to quickly evolve and adapt to what is commonly now referred to as the ‘new normal’. There was no choice. Adapt or be left behind. This adaption was made possible through digital platforms. Fortunately, substantial changes had already taken place in the shift towards digitalisation, enabling a swift transition of our judicial system to the online environment (B Scriba and S Nel ‘COVID-19 silver lining? The dawn of a new digital era for South African dispute resolution’ (www.cliffedekkerhofmeyr.com, accessed 1-6-2023)).

In 2012, r 4A of the Uniform Rules of Court already introduced the option of serving court processes via e-mail. This mode of service then became the norm since the COVID-19 mandatory lockdown laws. Long before any COVID-19 lockdowns, the Gauteng Division of the High Court had actively been preparing to implement an electronic case management system, called CaseLines.

By virtue of a practice directive issued by the Judge President on 10 January 2020, the Gauteng Division of the High Court became the pioneering court in South Africa (SA) to successfully adopt CaseLines. This innovative platform equips legal practitioners with the capability to electronically register new civil cases, submit documents, and present evidence within the jurisdiction of the Gauteng Division. Designed to facilitate seamless digital court bundles, CaseLines also offers opportunities to engage and cooperate in pre-trial preparations and procedures.

According to Scriba and Nel (op cit), CaseLines has been effectively incorporated in various global jurisdictions, including the United Kingdom and the United Arab Emirates – and while encountering some initial hurdles inherent to any new system, CaseLines offers numerous remedies to the issues typically encountered in traditional systems. Judges benefit from convenient access to comprehensive electronic court files before hearings, and the system enables the establishment of virtual hearings, even in challenging circumstances such as a pandemic with its accompanying limitations.

In courts where CaseLines had not been implemented yet, alternative strategies have had to be devised to navigate the restrictions to accessing courts as a result of lockdown restrictions. Electronic mail technology allowed these courts to adapt by filing by e-mail. This method, however, brought its own issues.

Given the successful implementation of CaseLines in the Gauteng High Court, it is likely to be implemented in more jurisdictions and levels of the judicial system. CaseLines will increase the efficiency, and sustainability of the legal profession, with improved access to justice, thereby promoting these constitutionally entrenched rights.

Due to the lockdown measures imposed during the pandemic, SA’s High Courts have incorporated virtual hearings and the issuance of electronic judgments into their practice guidelines. This includes, in some instance, the utilisation of CaseLines, while others have adopted different methods. The Supreme Court of Appeal and the Constitutional Court have implemented video conferencing facilities to conduct hearings. Various platforms, such as Microsoft Teams and Zoom are available to facilitate these virtual proceedings. As physical office access was restricted for an extended period, legal practitioners began resorting to electronic means to consult with colleagues and clients. This trend has now continued due to ease of use, saving on travel time and costs and increasing productivity.

Although digitisation has been ‘forced’ on many legal practitioners and the South African courts due to the pandemic, it is seen as our legal system aligning more with how other jurisdictions approach this situation.

The digitisation of dispute resolution procedures offers several advantages, including cost reduction and the ability for parties to participate in hearings without the need to travel or any physical attendance. Additionally, expenses related to printing, copying, and transporting physical files are eliminated. The potential benefits and advancements provided by digital systems appear to outweigh the drawbacks associated with traditional paper-based methods. As a cloud-based system, CaseLines, effectively addresses logistical challenges faced by judges when reviewing documents filed in different courts. This eliminates additional infrastructural barriers and enhances the efficiency of civil litigation (Scriba and Nel (op cit)).

Legal practitioners are generally receiving positive responses to the elimination of challenges, such as misplaced court files or incorrect file delivery to presiding officers. The advent of virtual interpersonal access and live streaming has brought about a transformative change in dispute resolution procedures. The use of digital platforms enables the preservation of the fundamental principles of open justice and transparency, which form the basis of our democracy and legal system.

With any developments, there are always opportunities and challenges. Technology introduces some distinct challenges, such as technical errors and connectivity issues, along with the potential lack of individual practitioners’ familiarity with specific digital platforms. Nevertheless, the integration of digital tools within the legal domain holds the potential to overcome numerous practical and financial barriers to justice commonly found in SA. Therefore, the potential advantages outweigh the challenges.

These challenges in any event are not insurmountable. Training is always available. This development also reminds us that legal practitioners need to be lifelong learners as the law and methods of application and implementation are not static. We, therefore, need to grow with the changes to serve the public as best as possible. It is, therefore, imperative that the legal practitioners of the future study and train with institutions of higher learning that are forward and future focused. Covering the latest legal developments as well as developing an enquiring mind in the learner to ensure that they are work ready and able to adapt to the evolving landscape easily. Adaptability and the ability to learn new skills easily are imperative in the new normal. These skills are becoming even more important than the traditional skills of learning theory which is now largely available at one’s fingertips.

Undoubtedly, the COVID-19 pandemic has served as the driving force behind the adoption of paperless digital courtrooms (LexisNexis ‘COVID-19 pushes courts to new era’ (www.lexisnexis.co.za, accessed 1-6-2023)). This transition enables presiding officers and legal practitioners to operate more efficiently within a secure online and virtual setting. Embracing technology can only enhance the courts’ function as custodians of SA’s rule of law.

Dr Bronwyn Batchelor BCom Law (UFH and Rhodes) LLB LLM LLD (UFH) is the Head of the Faculty of Law at the Independent Institute of Education.

This article was first published in De Rebus in 2023 (Aug) DR 6.

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