Litigation in South Africa post Covid-19
South Africa entered into a strict and extensive lockdown from 27 March 2020 due to the coronavirus pandemic. This lockdown has been extended to the end of April 2020. The decision by President Cyril Ramaphosa regarding the restrictions, included seeing the military deployed to townships, highways and streets, strict lists of what constitutes “essential services”, drastic restriction of movement including no dog walking and jogging. The lockdown also saw the courts grind to a halt. Numerous regulations and practice directives have been sent to counsel and attorneys, at an unprecedented rate. The lockdown has essentially meant a total arrest of litigation, save for drafting and in some respects, remote consultation. This article addresses the immediate effects of the virus on litigation, particularly at the Bar and some predictions regarding short-and-medium term consequences.
Counsel, advocates or barristers are specialist litigators. Our specialization is advice and arguing in court. For counsel, it has meant a month lost in available court work. Most counsel starting at the Bar (known as Baby Juniors), elementary court work has been removed from their practice, which is their bread and butter. Just prior to the lockdown, there were restrictions in the week leading up to lockdown regarding attendance of the courts. So, the general public could not attend, moreover counsel had their temperatures taken and had their hands sanitized prior to entering court. It has been debated amongst the profession, whether courts could operate on a similar basis, going forward after lockdown.
A CALL FOR ONLINE PRACTICES AND COURT PROCESSES
For numerous years, there has been debate about getting the courts and legal profession more in line with 4IR and modern technological settings. This has been amplified by developing areas of legal services such as Legal Practice Management and Legal Design. South Africa has been behind in these fields. Only recently, has it been open to attorneys and counsel to load cases online through a system called CaseLines. Access to vast, efficient, reliable online systems at court however is extremely difficult. However, this has at least been a positive start. Currently, some Judges are offering remote court attendances through Microsoft Teams to hear and process unopposed motions. This too, is a step in the right direction for making the provision of legal services more resilient in times of a pandemic. It remains to be seen however, how the court will handle future set downs for trials and opposed motions – and whether these can be handled and processed remotely. I for one, doubt it. The problems with remote court processes include: -
The system is only as strong as the available hardware and software;
South Africa has several problems with access to available, efficient, seamless internet access;
Remote systems may be impossible or extremely difficult for PDIs or previously disadvantaged counsel to access;
Opposed motions may be able to be processed remotely, however trials will face several hurdles: -
Witnesses may be contaminated, it is impossible to assess who is in the room with a witness, who they have access to and whether they have notes in their possession;
Witnesses may also attempt to avoid cross-examination during remote trials by several means to feign difficulty with the online system;
The timing and pace of a trial and even an opposed motion may be severely hampered with slow wifi, internet access or difficulties with online communication.
The above being said, there is substantial scope and opportunity for counsel and attorneys to investigate the following: -
Remote consultation, advice and opinion work through several software options;
Hybrid chambers, whereby counsel offer a mix of traditional chambers and online services;
Remote arbitrations and mediations.
VARIOUS FIELDS OF EXPERTISE
It is also anticipated that certain fields will also flourish in the immediate aftermath of Covid. These include competition and intellectual property, food security, insolvency and business rescue, tax, labour and contract. In the construction sector, the focus will be on cost cutting solutions – quick adjudications, interpretations of contracts regarding penalties and extension on time provisions against vis major. I also anticipate that there will be more scope for development in areas of environmental law, which includes food security since there will be a shortage of scarce resources. The origin of Covid-19 also links back to wildlife markets in Wuhan, China and there is hot debate about wildlife trade. These aspects may well affect future negotiations between States and multi-nationals who make it conditions of contract that products and services in no way support the sector of wildlife trade – which a multi-trillion-dollar industry.
Covid-19 will most certainly change the landscape of provision of legal services in South Africa. As much as there are threats immediately apparent, including economic recession, falling markets and limited access to courts – it offers a viable opportunity to REASSESS: -
the provision of litigation, to make such services more accessible, online and modern;
traditional billing models and over-reaching, the latter of which was killing the profession’s credibility and longevity anyway;
traditional notions of chambers, court and Bar infrastructure with a focus to streamline, avoid waste and include aspects of innovation;
traditional notions of rendering advice, with counsel in particular having to find ways to innovate into areas previously unexplored such as LPM and legal design.