Is South Africa Seeing the End of Virtual Hearings?

In March 2020, much like all other professions, litigators had to adapt to a virtual world while also having to grapple with changing court directives and processes. The move to a virtual courtroom was often seen as beneficial to clients, as it contributed to cost savings.

However, with the National State of Disaster coming to an end after a little over two years, for many, life appears to be returning to normal. What does this mean for litigators?

Proposed Guidelines for Court Operations post the National State Of Disaster have been issued by the Gauteng Division. Initially, during the National State of Disaster, the default position was that proceedings would occur virtually, and only where it was impossible to arrange teleconferencing or alternative electronic means, could the judge seized with a matter direct a hearing in which the representatives of the parties would appear physically.

After June 2021, the final discretion as to whether a matter would be heard in open court remained with the presiding judge, and not only in instances where a virtual hearing was impossible.

The proposed guidelines acknowledge that there are a number of challenges facing the state of operation of the courts, such as unstable internet connectivity and lack of functional air conditioning. The following guidelines have therefore been proposed:

  • it remains the prerogative of the presiding judge to determine whether a civil matter is heard in open court or virtually;
  • in matters where evidence is required, the presiding judge retains the discretion to determine whether the matter should be heard in open court and, in taking the decision, ought to bear the following factors in mind:
    • the submissions of the parties on whether a physical court hearing is preferred;
    • the nature of the evidence to be presented;
    • whether the parties have the means to attend a physical court hearing;
    • If a virtual hearing were to be conducted, whether any of the parties would be unable to access the electronic means for the period that the matter is to be heard; and
    • whether justice will be properly served, and the interests of the parties fully catered for, were the matter to be conducted either in court or via electronic means.
  • it is preferred that the admissions of legal practitioners be conducted in open court;
  • where no evidence is required, for example in urgent court and in motion proceedings, the discretion remains that of the presiding judge to determine the method of hearing;
  • the judge also retains their discretion as to whether a case management meeting may be conducted virtually or in person; and
  • insofar as appeals in the High Courts are concerned, the presiding judge retains the discretion to either dispose of the appeal without the hearing of oral argument, or to hear argument whether in court or via a virtual platform.

The proposed guidelines also indicate that it is preferable that all judges issue any directive pertaining to the conduct of their various courts, at least one week prior to the commencement of the hearings.

While the proposed guidelines leave much to the presiding judge's discretion to determine the conduct of the hearing, there are indications that a move away from virtual court is approaching. For example, the proposed guidelines also stipulate that the Pretoria Society of Advocates has requested the acting judge president to direct that civil hearings be conducted in open court.

In addition, the Supreme Court of Appeal has also issued a directive that virtual hearings are no longer the default position and the Supreme Court of Appeal has returned to in-person hearings, in open court, from 1 May 2022.

This is a pity, given that with virtual court hearings, the costs of traveling in advance of the hearing and the cost of accommodation in Bloemfontein was avoided.

Authors

Aslam Moosajee

Vishana Makan