BY Aslam Moosajee AND Shenaaz Munga
South Africa: Is the dispute resolution environment likely to change by virtue of COVID-19?
During the initial lockdown period, new legal process could only be issued for urgent matters, Coronavirus (COVID-19) matters, certain criminal and family law matters, claims that were about to prescribe or where some other time period required process to be issued during lockdown. Even though these restrictions have since been relaxed, during the period 31 March 2020 to 3 June 2020, a substantial number of pending matters were not heard, and litigants’ capacity to issue new process was severely restricted. The effect of this is that there is a greater backlog in South African courts and the prospect of getting quick, easy and inexpensive justice has become even more remote.
Prior to the COVID-19 lockdown, it could take at least a year for litigants to have action proceedings heard by a court, and at least six months for litigants to have an ordinary application heard by a court. It will now take even longer to have an action or an ordinary application heard by a court. As a result, some litigants are pursuing alternative dispute resolution methods such as arbitration and mediation discussed below.
The one downside of arbitration proceedings is that arbitrators’ decisions are not generally reported and do not contribute to the body of legal precedent. Therefore, these decisions do not carry sufficient weight in future litigation.
Arbitrations can be conducted via an electronic platform. When conducting arbitrations via an electronic platform, the Seoul Protocol on Video Conferencing in International Arbitration, provide helpful guidance on how an online hearing should be conducted. The Seoul Protocol provides, amongst other things, that:
- a witness must give his or her evidence sitting at an empty desk or standing at a lectern, and the witness’ face must be clearly visible;
- to the extent possible, a video conferencing venue must, among other things, have at least one on-call individual with adequate technical knowledge to assist in planning, testing and conducting the video conference;
- as a general principle, testing of all video conferencing equipment must be conducted at least twice: once in advance of the commencement of the hearing, and once immediately prior to the video conference itself;
- during the course of the video conference, the only persons present in the venue in which a witness is giving evidence will be the witness giving evidence, with his or her legal representative, where applicable, interpreters, paralegals to assist with the documents, and representatives from each party’s legal team on a watching brief (this is designed to prevent a witness’s evidence being manipulated); and
- no recording of the video conference is permissible without leave of the arbitration tribunal.
If parties require a dispute to be resolved expeditiously or need to be careful that the rigours of litigation do not permanently damage the relationship between them, the parties are best advised to refer the disputes to a mediator. A skilled mediator will generally not spend too much time evaluating the parties’ rights and obligations. Instead a skilled mediator will play a facilitative role between the parties and will explore what the parties’ needs, concerns, fears and interests are, with a view to helping the parties craft a solution, which both parties can live with. If disputes are resolved at mediation, there will be a significant cost saving for the parties and an expeditious resolution of the dispute.
In the past six weeks, we had three separate complex disputes referred to mediation and all three disputes were settled.
The Caselines system, which was rolled out in Gauteng earlier this year, and which enables parties to file papers electronically, has, as a result of the restricted access to courts, been increasingly used by the Johannesburg and Pretoria High Courts. Elsewhere in the country, where Caselines has not yet been rolled out, judges have, in certain instances, been willing to accept delivery of documents via email.
The various COVID-19 related directions issued by Minister Lamola and the Judge Presidents, made provision for certain matters to be heard via an online platform. Such online hearings are more conducive for motion proceedings (where the matter is argued on the basis of the affidavits before the court) than in trials, where oral evidence from witnesses are necessary.
The Supreme Court of Appeal has conducted various virtual hearings, but has also expressed a willingness to decide matters on the basis of only the written argument filed. Counsel therefore need to be careful that they don’t leave anything important out of the written heads.
If we embrace the technology and we are solutions driven, we may be able to put adequate safeguards in place to ensure that more matters can be finalised by way of hearings on online platforms. This will not only help reduce the court backlogs, but it may turn out to be a lot more cost-effective for litigants.
Dispute Resolution | Executive
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Dispute Resolution | Associate
+27 67 180 4706