Covid-19 has affected the functioning of the courts in SA. While they are an essential service and are operating during the lockdown, their operations are severely constrained by regulations and directions issued by the justice minister and various divisions of the courts.

Lockdown directives issued by the Gauteng division of the high court have meant that only urgent matters, and those motion court matters already enrolled for hearing, have been dealt with by the courts. As SA moves from level 4 to level 3, the courts are likely to issue further directives to permit the issuing and hearing of new processes.

While the courts had begun to take some measures before Covid-19 to move into the digital age, the pandemic has accelerated this evolution. In January, an electronic case management and litigation system called CaseLines was introduced. This allows for the creation of cases and for parties’ legal representatives to have electronic access for filing and uploading documents and to present a case. While there were some initial teething issues, the introduction of the system could not have come at a better time.

Few practitioners and judges used CaseLines before April 2020. Now, matters heard by the high courts must be presented exclusively on CaseLines, with judges refusing to hear matters that have not been registered with, or documents uploaded onto the system.

Typically, those stalwarts who refuse or fail to take the plunge and learn new skills hamper the adoption of new technology. Covid-19 has resulted in the complete dismantling of the old guard, leaving the reticent majority with no option but to confront this new technology. In addition, CaseLines instantly resolves many issues associated with paper filings, the storing and archiving of physical files, and ensuring that a judge has access to a complete set of copies of the necessary papers.

Further,  save for certain judges in certain urgent matters, courts have directed that all matters be run virtually, with counsel presenting their arguments to the judge via Microsoft Teams, and judgments handed down through CaseLines. Reports from lawyers who have attended virtual motion court proceedings indicate that so far the process is running smoothly, apart from a few technical glitches. In fact, many lawyers are learning to better present themselves on a virtual platform to ensure their clients’ cases are put forward in the best possible way.

However, the courts may face difficulties going forward. There is likely to be a significant backlog once the lockdown eases, with matters that were postponed needing to be heard and having a knock-on effect on matters already enrolled, as well an influx of new cases that could not be issued during the lockdown.

Alternative dispute resolution forums have, unlike the courts, continued to run at full functionality during the lockdown. These forums have similarly had to adapt to the effects of Covid-19. Arbitrations are now being held virtually, with both local and international bodies responsible for the administration of arbitrations introducing measures guiding their conduct. For example, the International Chamber of Commerce, which continues to progress pending and new cases, has issued guidance on arbitral proceedings that deals with various issues including mitigating Covid-19 delays, cyber-protocol, and sample clauses for commercial agreements. The Arbitration Foundation of Southern Africa has also adopted measures to guide virtual hearings.

As a result of Covid-19 court restrictions, this may result in an increase in the number of disputes that are referred to and resolved by way of (virtual) mediation. There should also be an increasing number of cases being referred to arbitration instead of litigation, where the procedure and appointment of the arbitrator is not left to chance.  

In March, SA introduced a new Rule 41A to the uniform rules of court in terms of which every new application must be accompanied by a notice to the parties indicating whether they agree to refer the matter to mediation. This is perfectly timed, and parties should be encouraged to make full use of the mediation process, which is an efficient and cost-effective way to ensure the resolution of disputes.

Parties to commercial contracts are advised to include in their dispute resolution provisions the option to have the matter referred to mediation first and, where unsuccessful, arbitration. Parties should also consider including a provision in terms of which their authorised representatives attempt to settle any disputes raised before the case is referred to any dispute resolution process. Parties should also consider the rules associated with various local and international arbitral regimes to assess which of these might best be able to facilitate a virtual hearing in this new, socially distanced world of commercial transactions and dispute resolution.

• Bernstein is partner and head of the dispute resolution practice, and Lafleur senior associate, at Baker McKenzie Johannesburg.

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