The COVID-19 epidemic has forced courts and CCMA and Bargaining Councils and the practitioners to adapt at pace. Whilst it is an ideal world to be paperless this is not wholly possible but this is the way that we are moving. The High Courts in SA have already introduced “Caselines” which is an online system where affidavits and pleadings are loaded onto the system and virtual court hearings conducted using these documents. Legal Practitioners have had to adapt to these challenges at a rapid rate or face becoming redundant.
In other forums such as arbitration/adjudication hearings and CCMA/BC there has been a considerable lag in going the virtual litigation route whereas in the International Arena there is already experience of remote hearings and cross-examination of distant witnesses by video. The CCMA has, before the advent of Covid 19 and the subsequent restrictions, allowed evidence by Skype and/or video conferencing in exceptional circumstances. This, I believe, will become the norm notwithstanding the availability of the parties and in a recent matter before the Labour Court the presiding Judge intimated that in instances where the matter can be decided on the papers (that is affidavits and written submissions) before him that this should be the new normal.
What does this mean for the litigants?
It is apparent that where an indigent litigant or where a party does not have access to the necessary equipment and/or cannot afford it, the Labour Courts and CCMA/BC will ensure that they are not unduly prejudiced by insisting on conducting the hearing remotely.
Where these challenges are not present, these forums may well insist on the parties using one of the virtual platforms such as Zoom or Microsoft Teams. Usually the choice of platform will be imposed on the parties and information about and how to use these platforms is readily available on the internet.
During the lockdown many companies, individuals and legal practitioners used the time to become familiar with these platforms and will now be able to build on these experiences. Legal Practitioners will need to rapidly hone and gain greater skills required to deal effectively with remote hearings.
Practitioners will need to improve their experience and skills to efficiently deploy their professional skills in communication and persuasion in the new working environment to enable them to approach a remote hearing with confidence and do their job effectively.
“Judges and advocates who already have experience with this practice consistently remark that effective remote advocacy depends not on new skills. It rewards the bedrock skills; a clearly articulated and logical case, supported by selective use of authority and documents, and focussed examination of witnesses. With careful preparation and attention to those core skills, it is possible to make remote hearings, in appropriate cases, highly effective.” [1]
This is challenging even for the legal practitioners who are trained in trial advocacy so how will the ordinary man fare?
We highly recommend that you rather approach suitably qualified and skilled legal practitioners rather than risk losing your case due to lack of experience and/or skills.
NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact Allardyce & Partners on 011-234 2125 or enquiries@www.allardyce.co.za
[1] Principles for Remote Advocacy – The Council of the Inns of Court 2020
