Herausforderung Informationsgesellschaft:
Die Anwendung moderner Technologien im Zivilprozess und anderen Verfahren

Gefördert mit EU - Mitteln aus dem GROTIUS Programm

REPORT : SOUTH AFRICA

The Challenge of the Information Society: Application of Advanced Technologies in Civil Litigation and Other Procedures

Summary

The situation in South Africa is somewhat ambivalent. While all modern advanced technologies are available in the country, and while legal practioners use state of the art technology in every branch of legal practice, such technology finds no application in court proceedings, neither during the pre-hearing phase nor in the courtroom at the hearing. Moreover, there is at present no strategy for the introduction of advanced technologies in the courts.

In certain public offices, such as the Deeds Registries, information in comprehensive data bases are remotely accessible by legal practioners and other interested parties. Upgrading the current paper-based landed property transfer system in the Deeds Registries is being investigated.

The civil process

Apart from a few isolated efforts to introduce, by way of experiment, simple computerized systems, computerised court and case management systems are unknown in South African courts. There is clearly a need for a co-ordinated programme for the introduction of such systems, including the the introduction of service of court process by electronic file transfer and electronic case filing systems. The Rules Board for Courts of Law has indicated that it understands and appreciates this need. It is also recognised that the use of advanced technology (as is apparent from the experience in other jurisdictions) raises a host of questions which will have to be addressed. Apart from practical questions, such as the choice of appropriate hardware and software, numerous other issues need to be addressed; for example, what legal issues will have to be resolved before the technology can be implemented; how is the authenticity of documents received by electronic transfer to be determined; who is to be granted access to the electronic files; what is the potential disadvantage to the unrepresented litigant who may not have access to the technology; will comprehensive video records of trial proceedings affect the rule that an appellate court does not lightly interfere with the credibility findings of the court a quo?

Though the technologies and the requisite skills are available in the country, the modern courtroom with facilities such as bench and counsel access to legal data bases; concurrent (real time) computer assisted transcription of proceedings; video recording of proceedings with video and audio playback facilities; two-way video systems making remote participation in proceedings possible; display systems (of plans, sketches, graphics, etc) with concurrent computer monitor display and hard disk storage; consecutive (remote) translation using sophisticated speaker telephone systems, and the like, is unknown in South Africa.

Court proceedings are at present recorded on tape. Transcripts of the record are expensive and not immediately available. Once the transcript has been typed, the text can also be made available on diskette. For purposes of an appeal, "hard copies" of the transcript of the record must be filed. Where no transcript is requested the record of the proceedings remains stored on the original tape. Computer assisted transcription by way of stenographic machines linked to computer hardware and software that enable real-time notes of the proceedings to be viewed instantaneously, and daily transcripts to be avaliable on CD-ROM or diskette, has only recently been introduced in arbitration proceeedings and, in isolated cases, in proceedings in a High Court in Johannesburg. The advantages of this system, which is widely used in other jurisdictions, are so obvious that rapid spread of its use can be expected.

The courts have been reluctant, in both criminal and civil proceedings, to allow the use of video technology for hearings and other processes and have done so only in isolated cases. Provision is made by statute for the taking of the evidence of children in certain criminal cases by way of an "intermediary", the child being accommodated in a room which is linked to the court-room by way of closed-circuit television or one-way mirror. There is wide scope for the use of video technology, not only for the taking of evidence where a witness or expert is overseas or otherwise unavailable at the seat of the court where the hearing is taking place, but also for pre-trial conferences, for the hearing of applications for leave to appeal, for bringing a magistrate "on-line" to a court in a remote country district, and the like. The words of Lord Justice Brooke is very much apposite to South Africa with its long distances between urban centres:

"In a world where the lay user of the courts is becoming more and more dismayed at the delays and costs involved in court proceedings, it is absurd to bring lawyers and their clients long distances, or to have to wait while everybody involved in a case can be all together in one place, if certain types of court business can be achieved more efficiently at long distance ….."

South African courts have not, except on an informal basis between judge and legal representatives in a particular case, taken any steps to cope with the demands of complex litigation. Legal practitioners, however, are increasingly making use of advanced technologies to manage and control the document load in such cases. The road ahead is still long, but it is clear that techniques such as scanning documents by document processing technology, compiling a computerised index of all documents in a case, and the use of retrieval systems and search facilities improve mastery of the documentation and enhance the proper presentation to court of a complex case.

Research

Both statute law and judgments are available in South Africa in electronic form. Sources include a wide variety of products supplied by commercial publishers on CD-ROM or internet sites where access is available by subscription. The internet site of the University of the Witwatersrand not only provides excellent links to other sources, both local and overseas, but also contains an archive of all the decisions of the Constitutional Court, the Land Claims Court and the Labour Courts, and of the publications of the South African Law Commission. Also available on the internet are government materials such as Bills before Parliament, reports of Commissions and white papers and green papers.

SABINET (South African Bibliographic Information Network), a database available via the internet or via TELNET, provides information regarding the holdings of books and journals of South African libraries, and also gives access to international bibliographic databases en indices. The libraries of some High Courts are not linked to SABINET.

Conclusion

South Africa needs a body or agency endowed with adequate funds and skilled, professional staff to take control of a co-ordinated programme for the introduction of advanced technologies in our courts. The necessary expertise, skill and know-how is available.

Prof HJ Erasmus

University of Stellenbosch

Bei Fragen und Unklarheiten wenden Sie sich bitte an: [Prof. Dr. Helmut Rüßmann].
Stand: 10. March 2000.