16 Apr Video link conferencing extends and expands access to justice
“Giving evidence via video link conference or other social media mechanisms is a novelty in South African civil proceedings. Technology, with the necessary safeguards enhances the right to access to justice enshrined in the Constitution of the Republic of South Africa. There is a need for our courts to equip themselves with facilities for video link conferencing and develop the legal framework for the use of such technology. This was the view of the Durban High Court in the case of Krivokapic v Transnet Ltd t/a Portnet All SA 251 (KZD), where the court was called upon to determine whether it was in the interests of justice to allow evidence via video conference link.”
(As quoted from the case)
Ordinarily, in civil proceedings, oral testimony is given by the plaintiff in open court. In this case, the applicant was a resident of Yugoslavia and the plaintiff in a dependant’s action against Transnet. The applicant’s son had died while on duty, working for Transnet in May 2001. The applicant instituted an action for damages against Transnet, alleging that the deceased owed her a duty of support.
Transnet conceded liability and the action was settled to the extent of 70% of the applicant’s proven or agreed damages. The only outstanding issue was the determination of the quantum of damages suffered by the applicant. This led to the present application in which permission was sought for the applicant to testify from the premises of Montenegro in Yugoslavia, by way of a video link conference. The application indicated that Transnet would be given an opportunity to appoint legal representation to monitor and be present during the proceedings. The basis for the application was due to the applicant’s old-age, ill-health and impecunious state. The applicant was declared unfit to travel long distance by two medical practitioners. Further, the applicant could not afford the cost of travelling and accommodation for herself and chaperone to South Africa.
The court acknowledged that modern technology makes it possible for direct evidence to be taken from a witness in another country and for that witness to be cross-examined whilst the witness is visible to all, however, that our law has not been developed in this regard. Section 173 of the Constitution empowers superior courts to develop the common law if it is the interests of justice to do so In coming to its decision, the court considered jurisdictions such as Canada, Australia and America which have laws governing the use of video link conference, as well as jurisdictions such as the United Kingdom and the United Arab Emirates in which the courts were called upon to determine the same issue.
The court followed the Canadian approach to determining how the court’s discretion should be exercised. Accordingly, the following factors (enshrined in Canadian legislation) were considered:
- whether the court will be in a position to observe the demeanour, personality and conduct of the applicant;
- whether there will be an opportunity to cross exam the witness;
- the likelihood of evidence being lost;
- the age of the witness, serious illness and the cost of travel;
- whether it is necessary for the purpose of justice that the ordinary way of obtaining evidence should be dispensed with;
- the materiality of the witness’s evidence to the case and how likely the evidence would contribute appreciably to the determination of the case; and
- whether there are other methods of obtaining the evidence and the capacity of the parties to bear the expense involved weighed against the prejudice which the party seeking the application would suffer, should the relief sought not be denied;
Guided by the interest of justice and the Canadian legislature’s approach of securing “the just, most expeditious and least expensive determination of every civil proceeding on the merits”, the court granted the applicant’s order. This judgment is particularly welcomed in the construction sector, where getting witnesses to provide evidence in person in cross-border disputes is often logistically and financially impractical.
The Johannesburg and Cape High Courts have (in the cases of Uranium (Incorporated in British Columbia) t/a Areva Resource Southern Africa v Perie and Folley v Pick ‘n Pay Retailers (Pty) Ltd and others, respectively) also recognised the use of video link conference to procure evidence where the witness was unable to attend court personally as being appropriate in the interests of justice. We hope that the continued recognition of the benefits of technology in law by our courts will prompt the development of the rules of court.
Authors: Zama Ngcobo, Director at LNP Attorneys Inc and Thandeka Nene, Associate