Covid-19 and the Courts

The COVID-19 pandemic had a negative impact on the judicial system. It caused courts to shut down most of its activities and only urgent matters, those involving children and domestic violence cases were dealt with. Justice was delayed in most cases. However, the pandemic pushed the courts to enter an exciting era of digital adjudication.

The judiciary had to rethink how it hears and disposes of cases during our new normal times and beyond. The judiciary is steeped in tradition and any change normally occurs at a glacial pace. The pandemic forced it to be innovative and use various video-conferencing platforms in order to dispense justice. This happened at break-neck speed. All of a sudden judicial officers were introduced to a world where webinars, Zoom, Microsoft teams, and WebEx were commonplace. 

Like most institutions, the judiciary was caught flat-footed by the pandemic. Some courts already experimented with e-filing: filing all court documents electronically. Others still do everything the old fashioned way: hard paper and files.

The pandemic exposed our courts as institutions that were not ready to dispense justice virtually. The opportunity to do so was not lost. Many courts had to improvise and deal with as many matters as they could virtually.     

Legal practitioners most of whom lost income during the crisis were also forced to invest in technologies that could assist them to work from home or wherever they were. They too had to adjust to new terminology and technology.

The advantages and disadvantages of virtual hearings were extensively debated locally and internationally. Many of those who resist the changes in our work methods have cogent arguments against virtual hearings.

They argue that virtual hearings interfere with the accused persons’ right to a fair trial because the accused cannot confront his or her accuser. They contend that justice is not seen to be done during virtual hearings because the public and the media do not have access to virtual hearings. They also argue that it is difficult to make credibility findings when witnesses testify virtually. They further point out that the solemnity of the proceedings is lost during virtual hearings.

Most, if not all, of the objections to virtual hearings, can be overcome. The accused is present, albeit virtually present, during the entire virtual proceedings. The accused and his or her legal representative can also confer and consult privately. The right to challenge witnesses is retained because the accused right to cross-examination is retained.

Virtual hearings can give the public more access to court proceedings than conventional courts. In New York they set-up big screens at the courthouse. In San Francisco, the proceedings are streamed live on social media platforms. Members of the press are given links to the proceedings. In the UK the Brexit judgment, which was live-streamed, attracted more than 29 million viewers. No courtroom has that capacity.

Judges differ on the issue of credibility findings. There are those who say that one focuses better on the witness during virtual hearings. On the other hand, there are those who say it is difficult to make credible findings especially when the internet connectivity is not stable. Personally, I foresee no serious problems when it comes to this issue because the camera can be set to show the witness’ upper body and not only the face of the witness. Virtual hearings might even be better for most witnesses especially if they testify from familiar surroundings instead of a courtroom.

In order to keep the solemnity of the proceedings judges, prosecutors and legal practitioners should robe during virtual proceedings.

If we want to dispense justice during these trying times and beyond we will have to embrace new technologies and innovations. The judiciary will have to improvise in order to balance the right to a speedy trial and the complaints’ right to have the case disposed of as soon as possible in order for them to get closure. Civil litigation will also be more efficient. No more lost files, irretrievably lost or misplaced documents, because all documents will be filed electronically.

Virtual hearings are very cost-effective. It can reduce traveling and accommodation expenses for all involved. Expert witnesses can log in and testify virtually in more than one case in more than one province on the same day from one venue.

The greatest challenges that we face are finances, resources, and the socio-economic circumstances of most South Africans. The country’s budget is already overstretched and providing the necessary infrastructure and resources for virtual courts is going to cost a lot of money.

Proper training of judicial officers and other court personnel to navigate the different platforms will have to be rolled out as soon as possible. Currently, Judges have received training from other colleagues and it has worked well. There are, however, many other functions on the different platforms that may be harnessed in order to render the hearings more compliant with the fair and transparent hearing constitutional requirements. 

People who cannot afford technology will remain disadvantaged. Those in the rural areas will still struggle to have access to the wonders of technology.

The Rules Board has already drafted rules for conducting hearings virtually. This will assist in standardizing court processes, which will in turn ensure a consistent system to dispense justice.

 The system is not near perfect but it can work with dedication, vision, and the necessary will. We should not allow perfection to become the enemy of good. We should realize that justice is not always what happens in the courtroom but the outcome of the process.