Virtual trials – still the way of the future
The COVID-19 pandemic has caused the judiciary, which has seemingly consistently resisted the fourth industrial revolution, to be forced to embrace technology to ensure that the Courts remain functional. This has raised a number of issues, including the fairness of imposing virtual trials on financially destitute litigants.
The High Court of South Africa in Durban was required to consider the imposition of a virtual trial on litigants of varying economic status in Union-Swiss (Proprietary) Limited v Govender and Others  JOL 48062 (KZD). The applicant and plaintiff in the main action (“Union-Swiss”) sought an order that the 10-day trial scheduled to commence on 24 August 2020, be conducted remotely by means of video conferencing.
The dispute between Union Swiss and the respondents, being the defendants in the main action (“the Defendants”) arose out of an alleged infringement of the Trade Marks Act 194 of 1993, as amended, as well as the alleged counterfeit manufacturing of its protected goods in terms of the Counterfeit Goods Act 37 of 1997.
On or about 5 June 2020 Union-Swiss’s attorneys addressed a letter to the Judge President of the Durban High Court requesting that the trial be conducted by way of video conferencing. Union-Swiss contended that the directives issued by the Judge President in respect of COVID-19 (“the Directives”) and the urgency of the trial warranted an Order directing that the trial take place by way of video conferencing.
Union-Swiss took into account the financial position of the Defendants and put forth numerous suggestions in terms of which the trial could be facilitated including, inter alia, offering its premises in Durban as a venue for those who did not have access to the internet. Furthermore, Union-Swiss indicated that it would make the bundles of documents available in hard-copy as well as in electronic format in order to assist the Defendants.
The first and sixth defendants opposed the application brought by Union-Swiss. The primary contentions in support of their opposition were their rights to challenge Union-Swiss’s evidence in Court and to cross-examine witnesses in an open court “with the benefit of being steeped in the atmosphere of the court”. These rights, as the argument went, would be infringed should the trial be conducted by way of video-conferencing. The first and sixth defendants also contended that a virtual trial would impair the presiding officer’s ability to assess witnesses’ reactions, contradictions and inconsistencies and that such impairment would infringe on the audi alteram partem principle.
In its assessment of the merits of the application, the Court began by considering section 34 of the Constitution which enshrines everyone’s right to have a dispute decided in a fair public hearing before a court. The Court also considered the Directives which primarily sought to ensure the continuity of the Courts during the Lockdown.
The Court was not persuaded by the first and sixth defendants’ contentions. The Court was of the view that a witness being steeped in the atmosphere of the courtroom cannot conceivably extract a version from a witness which might not otherwise be obtained.
The Court also referred to the practice of Australian and Canadian Courts which have embraced and endorsed virtual trials. Concerning the ability to assess witnesses’ demeanour, the Court referred to the Australian Court judgment of Australian Securities and Investments Commission v GetSwift Limited  FCA 486 in which the Court held that a judge could have a better opportunity of observing a witnesses demeanour when captured on camera.
The Court was not persuaded by the objections raised by the first and sixth defendants. However, the Court raised concerns about the equality of the litigants in circumstances where it imposed a virtual trial on them. The Court found that the Defendants’ rights to equality would be compromised should a virtual trial be held. In essence, the Court found that although Union-Swiss may be comfortable in holding a virtual trial, the Defendants may not be. Accordingly, the parties would not be on equal footing before the Court should a virtual trial be held.
The Court further went on to find that in terms of the Directives, urgency would be the determining factor on whether a hearing should be held virtually. The Court found that the conclusion of the trial was not urgent as Union-Swiss was not suffering any ongoing harm and thus the application failed.
Although the Court admirably took into account the equality of the litigants, the judgment flies in the face of the practice of other foreign and local courts. The Court acknowledged that other divisions of the High Court were conducting a number of trials virtually.
The Court furthermore did not explain how the litigants’ right to equality would be enhanced in a physical hearing and how that right would be infringed upon merely because the hearing would be held virtually. Many courts and tribunals in South Africa have embraced video conferencing platforms to ensure the continuation of the right of access to justice. Video conferencing has also ensured the safety of the litigants and witnesses, despite the lack of urgency on many occasions.
This judgment illustrates that the right to have a matter heard without undue delays must be tempered with the right of all litigants to be treated on equal terms before a court. COVID-19 and the Lockdown have in many instances imposed the implementation of technology into many workplaces. The judiciary seems to be on the right track with the implementation of the recently implemented Caselines system. The use of technology in our courts should be embraced as in Australia and Canada. The only question that remains unanswered is: if not now, then when?