"Application of Advanced Technologies in Civil Litigation and other Procedures"
Lesotho has not yet adopted digitized proceedings; in fact the level of IT awareness is only trickling in even at institutes of higher learning such as the University. However, the computers have largely replaced the Remingtons and Olivetti type writing machines; and there is little use of wax stencils and carbon copies of typed materials. Nonetheless, there is under utilization of this advanced technology. Public offices such as the Deeds Registry, licensing boards, the Master of the High Court office, the Registrar Generals office and the Registrar of the High Court, still use the computers in their offices as typewriters to produce hard copies to be filed in cabinets.
The only noticeable single advancement towards proper utilization of IT is in respect of filing in diskettes; albeit in a haphazard manner. For instance the High Court stores only decided cases in diskettes during the typing of the judgment until after the judge's correction and then they are reproduced in hard copies and filed. After which they get erased. The High Court Rules (HCR 60) permit erasure of tape-recorded proceedings for subsequent recording. This practice has been extended so as to re-use the computer diskettes despite the fact that a computer diskette has more capacity than a recorder tape. As regards the Lesotho Court of Appeal, I have been reliably informed <1> that starting from this year's session, the judgements of this court have been filed in diskettes. The High Court and other courts may later follow if the acute shortage of software is addressed.
The Government computer centre, which is the brain tank for information technology in the public service, deals mainly with procurement and standardizing specifications. It has not created even a local network for Government offices nor within ministries per se. Computer literacy by private sector is steadily being encouraged and short courses offered to secretaries and other selected officials.
In the justice system, the Ministry of Justice officials and the High Court judges' secretaries use computers. The top officials and the judges are computer illiterate. There is therefore, no impetus to plan towards revolutionising proceedings in the courts. The idea of digitizing proceedings seems to be scaring and a hollow talk or thought.
The question, which this report addresses, is simply whether considering the procedures before formal courts in Lesotho, there is a possibility to use the advanced technology in some parts of the civil process. One has taken off from the premise that the method of proceedings before our formal courts admit of such a possibility and that the rules of procedure seem flexible enough to admit of such changes. It would seem also that a steady introduction in the usage of IT and a piecemeal coverage could be made. This could be introduced in those parts of procedure, which appear amenable to that change.
In order to make the presentation simpler even from my side, I make a brief reference to the complex question of jurisdiction in our courts and in the process chose to report on courts with formal and standard procedure. I also briefly outline first the main methods of proceeding before these courts; second, the service of process; and lastly I show the requirements for hearing and evidence. In each situation, the highlight is made on the broad requirements laid by the court rules.
Part V of the report indicates merely the possible areas for application of IT considering the current steps in civil litigation process. The possible areas exemplified by the German system are also relevant mutatis mutandis, for Lesotho. At this stage the report highlights practical problems likely to be met; and make some suggestions for change albeit not exhaustively.
I. Jurisdictions of Lesotho Courts
The Kingdom of Lesotho operates who parallel systems of laws namely, the Roman Dutch Common Law; and the Customary Law which is said to have been born out of the traditions, norms, and practices of the Basotho from time immemorial. The Roman Dutch Law, herein after referred to as the Common Law, was introduced into the Kingdom in the late 19th century via the British Colony of the Cape of Good Hope. The operation side by side, of these two legal systems was a result of both legal and political designs. In the former sense the Common Law was legally and procedurally extended and declared as the Law of Lesotho from the 1870's. In the latter sense the Basotho as a political unit, deliberately and purposefully refused to be bound, and regulated by any law that smacked of foreign traditions and underpinnings. In Lesotho therefore, disputed matters are brought before the courts to be settled either through the application of the Customary Law, or of the Common Law (inclusive of the statutory law).
Proceeding on a disputed matter is not however, based on whether the litigant chooses a forum and a particular legal system as a tool of adjudication; instead, there is a double-barrelled consideration. Firstly, the disputed matter must fall within the jurisdiction of the chosen court. Secondly, it must be inquired whether the matter in question can be initiated in that court and no other court. In addition, customary courts and formal courts differ on the one hand, on the law they have to apply; and on the other hand on the type of cases they may adjudicate upon. For instance, customary courts have unlimited jurisdiction on all matters based on Customary Law. Matters initiated in the customary courts can be reviewed by the Subordinate Courts (herein referred to as Magistrate Courts) which are formal first level courts. Appeals against the decisions of the customary courts could go through three or four levels.
The Common Law and Statutory Law fall under the jurisdiction of the Magistrate Courts and the High Court. However, the only court that has unlimited original jurisdiction to hear any matter based on any law is the High Court. In addition, this court is the appellate court for all lower courts, and has review powers over Magistrate Courts and all quasi-judicial bodies. In other words, though the Magistrate Courts have original jurisdiction, they are limited by the type of cases they may hear. For example, they may not deal with divorce or judicial separation; they cannot deal with contractual dispute in which specific performance is claimed. They cannot also deal with cases involving interpretation of a `Will'. Civil litigation in Lesotho therefore, follows different procedural paths and legal principles because of the dual legal system. It also follows those paths as a result of different jurisdictions.
The procedural law in Lesotho is by and large a written law in that, despite legal dualism all the courts in their different levels, have written court rules spelling out the procedure from initiation of a case up to final decision. Prior to colonialism and advent of formal education, the customary courts applied both unwritten laws and rules of procedure. Presently these courts apply partly written laws and rules of procedure. The Magistrates courts, which are creatures of statute, apply only written procedures. The process and the format in these courts are standardized and permits no deviations save in very minimal formal requirements (e.g. indicating the class of Magistrate court hearing the dispute, specifying the geographical jurisdiction and special jurisdiction where such exists).
Bearing in mind this brief background in the jurisdiction of Lesotho courts, the application and suitability of advanced technologies will only be considered in respect of formal courts. This is also meant to confine our national report to manageable levels, so, we have chosen to use processes issued from the Lesotho Magistrate Courts and the High Court.
Following reasons also seem to support our choice:
Although our report will use both the High Court and the Magistrate Courts, it will however draw examples primarily from the High Court process. A resort to the process in the Magistrate Courts will only be made where necessary, and for further clarification or emphasis. As a matter of format and layout, civil litigation process will be dealt with as the basis of our assessment while other non-litigation procedures will be complimentary.
II. Brief Background to Civil Process
The civil processes before both the Magistrate Courts and the High Court as courts of first instance are more or less the same. A civil case may be initiated either by way of a summons or by way of an application. For summons (action) proceedings in the High Court there is one standard format of summons to commence a case. The variations in format exist only in respect of Provisional Sentence summons; and for cases based on mortgage bond. In other words, the form of summons issued from the High Court remains same irrespective of whether the dispute is delictual, contractual or matrimonial. In these situations the High Court Rules demand that specific allegations peculiar to such cases, be pleaded in the Declaration.
There is a distinction in form for summons issued from the Magistrates Courts. The court rules here provide for the three different kinds namely: simple or ordinary summons which is used solely for debt or liquidated demands. The second type is for cases in which the claim includes an automatic rent interdict. Lastly, interpleader summons presents another type of summonses from these courts. Majority of cases in these courts would follow an ordinary summons proceeding; and this is largely due to limitations on the civil jurisdiction of these courts. Different forms of summonses are provided for and annexed to the Court Rules. The general form prescribed for the High Court does not spell out the cause(s) of action and the relief sought. In every case therefore, the format has to be adapted to the information and nature of case at hand. For the Magistrates Courts, the different forms of summonses indicate the cause of complaint; that is, the nature of claim and the relief required.
There are other formal requirements for the issuance of summons from both courts. In the High Court the summons is issued through the office of the Registrar of the High Court, who must also sign the summons together with the plaintiff or the latter's attorney. The forms "K", "L" and "N" make provision for the Chief Justice to witness the summons. The summonses in the Magistrate Court are sued out by the plaintiff or his attorney; and are signed only by the Clerk of Court who must indicate the date of issue. The Subordinate Court Rule 5 provides that the summons shall be in printed form and this includes electronic or photographic copy, but excludes duplicated typing, wax stencil and lithographic method.
Save for interpleader summons prescribed for the Magistrate Court, all summonses must bear revenue stamps. Since cases commenced by way of summons lead to full scale trial hearing, there are several other procedural steps and further pleadings which have their own formal requirements. For instance apart from the main pleadings of parties, following matters are requested by way of notice, or notice of application.
These procedural steps or some of them and other pre-trials procedures may form part of any summons proceeding.
Application (Motion) Proceedings
This type of proceeding is suitable in situations where the parties are agreeable on the factual basis of their dispute, but are disagreeable on the legal consequences to be drawn from such facts. An application could be on notice, or it could be an ex parte one. It is on notice if the applicant files and serves both the court and the party against whom the relief is sought, or a party whose rights may be affected by the order sought from the court.
The respondent is not given any notice of application if it is an ex-parte or urgent application. Only the court will be notified of the proceedings and only the applicant will be heard. Generally, in all these kinds of applications, it is mandatory that the applicant sets forth the grounds or facts that necessitate non-compliance with the general rule of service of process to all litigants. In this kind of proceedings a relief sought may be an immediate one, interim or one in which nobody save the applicant is interested. Where the relief would affect the rights of others, or if other parties must be heard, because they have an interest in the outcome of the issue, a court will order a rule nisi calling upon such parties to show cause why the order of the court as prayed by the applicant cannot be made final. In this way, these other parties will be heard.
All application proceedings (motions) are decided purely on the basis of signed and sworn to affidavits setting out the facts common to the parties. This sworn to statement of fact is also a statement of evidence, sometimes and under exceptional circumstances, they may not follow the normal rules of evidence; for example, they may contain hearsay information. Since the hearing of an application proceeding is confined to the papers file by the parties, no oral evidence is given unless it has been specifically ordered by the court to resolve any dispute of fact which may exist during the course of hearing, or ex-facie the affidavits.
Petitions that are moved only in the High Court are provided for under different statutes, and each statute prescribes the content peculiar to the case thus regulated. While a petition follows the general rules for applications, it has to conclude with the form of the order sought and be signed by the petitioner. In addition, the petitioner or somebody on his behalf must swear to a verifying affidavit, - HCR 8(3).
Save where the application is a petition, the court rules provide for a basic form for the different types of applications. It is a formal requirement that an affidavit, in support of the application, must be sworn to and signed before a Commissioner of Oaths. According to case law in Lesotho, an attorney or his partner, or his agent cannot act as such a Commissioner on behalf of his client. The Commissioner of Oaths must sign the declaration of oath and indicate the date and place where the affidavit was sworn to.
There are fewer drafts in application proceedings hence, in most cases commenced in this manner, the maximum number of affidavits is only three sets. Additional affidavits are an exception, and only permissible by order of court.
For all process, the periods for filing summonses, notices, affidavits or subsequent court papers, and pleadings are spelled out in the court rules.
III. Service of Process
Both the High Court and Magistrate Court rules prefer personal service over other modes of service of process. In exceptional circumstances such as where the defendant whereabouts are unknown, or if the defendant is outside the Kingdom, substituted service or service by edict can be ordered on the application of the plaintiff. Personal service could, even in these situations, be effected through diplomatic or consular services. Personal service is effected in one of the following ways:
Service of process is executed by messengers of court in the Magistrate Courts; and in the High Court, it is the sheriff or his deputy. These officers are mandated to make a return of service respectively to the Clerk of Court and the Registrar.
The rules also permit service by registered post. In the past, service of summons was also by telegraphic means (the Morse code). The court rules also mandates litigants to choose an address of service within a prescribed area of distance from the court seat. In the case of the High Court, this distance is five (5) kilometres. For Magistrates Courts, it is seven (7) kilometres. Subsequent service of process particularly by the defendant or respondent will be made at his chosen place of service.
IV. TRIAL/HEARING AND EVIDENCE:
The rules mandate litigants to be present during the hearing. In the case of application proceedings since there will be no viva voce evidence, the litigants representative (lawyers) presence suffice. Evidence must be given orally and the witnesses examined and cross-examined. The value of this rule lies in testing a witness demeanour and consistence in relaying the facts.
Though viva voce evidence is valuable, the rules permit written statements; though a witness who has subscribed to this form of evidence could still be called for cross-examination. Non-appearance of parties in an action proceeding carries its own adverse effects or even summary judgement on behalf of the defendant. Besides, in trial actions the litigants have evidentiary burden; therefore their presence cannot according to present rules, be excluded.
Record of Proceedings
The rules permit recording of proceedings either verbatim or by shorthand, or mechanical means. Both the shorthand notes and mechanically recorded ones are transcribed into longhand and filed as hard copies. The tape recording is the only mechanical means in use in the High Court. The other courts use the longhand to record proceedings, and each longhand varies from one presiding officer to the other depending on the preferences of a particular officer to devise short form of words. In addition, the tape recording may be coupled with interpretation depending on the official language used by the witnesses. It is common to have longhand record of proceedings in one language, while evidence was given in another language.
V. Place of Advanced Technology
The current methods of proceedings before our courts and the rules on procedure seem mutatis mutandis amenable to technological change and advancement.
1. Commencement of Proceedings and Service of Process
In both application and summons proceedings, digitized process can be filed; and service adopted in like manner. For instance, the practising legal firms are bound to follow the standard forms prescribed by the court rules; these forms have merely to follow a uniform computer specification, and stored in the hard drives of each practising firm. The process could then be filed using E-mail from the office of the practising lawyer to the relevant court. Notifications between firms would follow the same routing. Alternatively, the process could be filed by diskettes, which the court can copy into its own computer to open the relevant case in point at the time.
However, this change will demand that both the courts and legal firms be electronically connected with a possible one-way access to the filing system of the courts. It seems if our telecommunications corporation is competent, it would be possible to have a local network or even an area network so that both the courts and the legal firms could be connected to a computer server either by a cable or by telephone (modem).
The other problem to consider if digitized proceedings are adopted is to change some court rules. For instance other than to affix revenue stamps to processes, electronic franking may be adopted. Another issue will be personal service in particular where the litigant is not served through a legal firm even if the address for service is within the specified distance from the court.
In short, the current system of using hard copies to initiate proceedings, giving notices, filing pleadings, and arranging settlements could be changed at least within the areas specified by our court rules.
2. Files and Case Management
All process of court is issued through officers of court, that is, the Clerk of Court and the Registrar of the High Court. These officers are obliged by court rules to ensure that the case files contain all the processes filed through their good offices. Mishaps happen even in the processing and management of manually filed court processes. For example, there have been in our courts, theft of dockets, weeding of pages and the like. Devices may be put in place to protect an electronic file; for instance anti-tampering, anti-virus or complete blockage of unauthorized access.
Although on the one hand, High Court Rule 60 permits periodic re-use of tapes, on the other hand, Rule 41 (19) permits record of proceedings in varied forms including mechanical means. This Rule goes further to mandate that the transcript and the original records be filed with the Registrar. Rule 60 could be overhauled or amended so as to continue with the modern and advanced storage of judgements in diskette.
In addition, HCR 41 (18) empowers the court to order that the record of proceedings be kept in any manner the court deems fit. This Rule could be amended to reflect the change towards advanced technology. Re-usage of diskette should be discouraged. Once the judgments have been corrected, they could be filed in the advanced manner. In this way, reproduction will be quicker and easier for instance to service the law reporting exercise, preparation of appeal records, and even individual requests.
At present, the High Court uses double filing or duplicate system wherein each case has two files viz., the Registrar's file and the judge's file. In addition, there is a strict monitoring of file handling and movement.
3. Hearing and Evidence
The consideration here concerns the hearing in trial proceedings as evidence in application proceedings is based solely on papers filed by litigants.
Most pre-trial procedures could be electronically communicated (discovery of documents, and pre-trail conferences minutes). However, what emanates for instance from a pre-trial conference will be used by the court or the judge, but the latter has no power to supplement or gather information from a non-party to the litigation. Parties to litigation fall or stand by their pleadings.
In as far as the actual hearing and evidence is concerned, both the High Court and the Magistrate Court rules require viva voce evidence and the presence of both plaintiff and defendant during trial. In fact at present the rules penalizes a party that absents itself on the pain of either default judgement, absolution from the instance, and at the extreme, a final judgement may be given against an absent party. Nonetheless, the rules permit written evidence in some situations. This written testimony could very well be replaced by video techniques. The presence of the parties and taking evidence viva voce in the courtroom seems to be vital in testing the witness' demeanour and consistency in tendering evidence. Besides, the parties themselves have an evidentiary burden. Electronically tendered evidence may lack that human face, and scrutiny. But even this valuable test in evidence does not totally rule out teleconferencing, although considering the current socio-economic development, this type of communication would be possible only where parties are represented by legal firms; or possess the relevant equipment. If this method is adopted, the courts rules on representation of parties (HCR 15 and SCR 49) may need amendment.
4. Legal Authority and Final Decisions
The courts in Lesotho rely largely on literary material in the courts libraries or other libraries. For instance, in the High Court, the judges chambers have a few copies of legal authorities in the form of books, statutes and journals. Presiding officers in the Magistracy are not so endowed. The High Court library is the only nearer source of information on authoritative reading. Decided cases, either in loose-leaf form or bound Law Reports, form another source and legal precedents.
Access to electronic legal information can be pursued. For instance, book publishers from other jurisdictions such as the Republic of South Africa, produce legal materials in CD-roms. Since Lesotho shares Roman-Dutch Common Law with RSA, such electronic material would be useful. These CD-Roms could be purchased and copied into hard disks (at server points). A local network could be created connecting the judges and the magistrates to access this information.
However, as earlier indicated, there is no computer literacy in the Lesotho bench. There is a great deal of reliance and dependence on secretarial staff albeit for typing and not access of information in the above sense. This state of affairs may continue until all the judiciary staff has been well introduced to computer literacy. In the High Court all judgements are computer produced and saved in diskette but very few are stored in that manner because this software is reusable. Even during the preparation of the judgements, only hard copies are referred to judges for correction using the longhand. Since not all the courts are advanced in IT, their decisions are accessed through purchase of hard copies or as published reports.
5. Appeals and other Judiciary Proceedings
Records of lower courts are reproduced verbatim for perusal by judges of the Court of Appeal. It would seem that once the records of lower courts are digitized, the records would be readily available for utilization by the Court of Appeal.
The other relevant public offices which store vital documents are the Registrar General's Office; the Master of the High Court, Licensing Boards such as the Traffic Department office, Trading licensing boards. All these offices have not yet embarked on electronic record keeping. They use either word processors or computers but they are not computerized; and they do not seem (those that use computers) to view copying of information from computer diskettes by the public and other users as a correct way of permitting accessibility. Only book-form registers with manually filled information are used. The law permits, at prescribed fee, the perusal and copying of the required information from such registers.
The records in public offices are a source of vital documentary evidence, and copying and perusal by the public is permitted. For these reasons, electronic record keeping could be adopted. In this way accessibility of information will be quick and easy.
In general, Lesotho needs a holistic plan to rationalize her computer usage especially in public offices concerned with civil litigation and other processes. For instance, application proceedings can adapt to digitized process with least changes in court's rules and laws of evidence. There are a lot of advantages to be gained if this method is resorted to; for example, cut on costs of paper, labour, time and finance. It will be a resource saving measure in the long run.
<1> As informed by the Registrar of the High Court - Maseru
Bei Fragen und Unklarheiten wenden Sie sich bitte an: [Prof. Dr. Helmut Rüßmann].