Over recent years technology has become part and partial of the way we do business. It revolutionised the way we communicate and the way we practise law. However, the process of adopting virtual proceedings in litigation and specifically labour proceedings was fast-tracked by the COVID-19 pandemic.
Courts serve mainly two functions in society, namely resolve disputes and deliver justice to individuals[1]. A virtual courtroom is a conceptual idea of a judicial forum that has no physical presence but still provides the same judicial service that is available in courtrooms[2].
South African Breweries (“SAB”) took a step forward into the “new normal” when it advised trade unions FAWU and Solidarity that it would enter into consultations in terms of section 189A[3] on a virtual platform.
FAWU elected not to attend the virtual consultation. Solidarity, on the other hand, attended and fully participated in the consultation process, which continued in the absence of FAWU.
FAWU referred the matter to the Labour Court, claiming that SAB’s conduct resulted in procedural unfairness.
The court disagreed when it handed down its decision in the matter of Food and Allied Workers Union (FAWU) and South African Breweries (case number J435/20) on 28 May, 2020.
The court held, in no uncertain terms, that while a party may have “convenient preferences”, such preferences may be disregarded as they are merely “self-serving” and indicative of ignorance “of the bigger issue of health and safety”.
The court, firstly, pointed out that the LRA does not define what constitutes procedural fairness.
Secondly, with reference to the Code of Good Practice, the court concluded that “any process that complies with section 189 and section 189A of the LRA is bound to be procedurally fair”.
Therefore, the only requirement for a fair consultation process would be for the parties to be present and make their submissions known. It is further clear from this judgment that the LRA did not prescribe the form in which a consultation process should take place. Where parties in the past convened physical meetings, the advent of COVID-19 has changed the way in which parties engage[4].
The judge, in this case, made it clear that with the new normal caused by the COVID-19 pandemic, Zoom is the appropriate form in which inter alia meetings can take place. It is, therefore, a necessary tool to ensure that restrictions like social distancing are adhered to.
The importance of this judgment is that the stance of the courts is that dispute resolution processes may, and perhaps even should, take place virtually in compliance with the restrictions levelled by the government in its attempts to safeguard the health of all South African’s.
The legal system is generally slow to adopt change and embrace technology. Having that said, it is, however, apparent from the number of judgments that are now coming out of the different courts and dispute resolution forums that some litigants believe they have the right to insist on face-to-face hearings.
It is interesting to note that the different courts, from the Supreme Court of Appeal (SCA) down to the Labour Court, have been sending out a clear message. These courts heard matters virtually, in line with the COVID-19 regulations.
Recently the SCA proceeded with a virtual hearing despite the fact that one of the parties [Liberty Fighters Network (LFN)], which took Cooperative Governance and Traditional Affairs Minister (Nkosazana Dlamini-Zuma) to court over lockdown regulations in 2020, refused to participate in the virtual proceedings.
Justice Mahomed Navsa left no doubt in the mind of LFN’s representative, Reyno de Beer, that the court would not tolerate his insistence that the matter be heard face-to-face, that is, in open court, saying: “If you decide not to participate, that’s the end of the matter as far as you are concerned. We will continue to deal with the remaining parties.”[5]
In Puma Sports Distributors (Pty) Ltd v Hughes and Others (1820/18) [2020] ZAWCHC 152 (10 November 2020), the court per Rogers J, held that there was no reason to grant a postponement because the defendant was in England and could not travel to South Africa due to COVID –19 restrictions.
The court held that matters that are not of “such complexity that oral evidence could not conveniently be heard remotely” could be dispensed with on a virtual platform.
When Justice Janse van Nieuwenhuizen decided that a divorce matter must proceed on a virtual platform, one party refused to see reason. The court made short shrift of this attitude, placing it on record that “the virus had an impact on all spheres of life” before stating that:
“This method has the obvious benefit of limiting the chances of exposing oneself – that is, all persons whose appearance/presence is pertinent to said court proceedings, be it judges, court staff, legal fraternity, witnesses, interested parties or the media – unnecessarily to contracting the virus”. [5]
Parties who insisted on proceeding face-to-face were “unreasonable” and “selfish”. [42]
However, it is prudent to note that the judicial system adopted a lot of structures in making courts more accessible to everyone over the last few decades. One example is the Commission for Conciliation Mediation and Arbitration (CCMA) which provides access to employees and employers to represent themselves without the fear of legal cost and in order to promote justice in focusing on speedy dispute resolutions.
It is clear from the latest judgments that virtual proceedings are not only here to stay. However, the question remains whether it is in the best interest of all the parties concerned.
One can’t do away with the reality that our society is made up by computer illiterate individuals, not even to mention the challenge of access to technology such as a computer, internet and data. This will, in essence, mean that if such individuals want to litigate or refer a matter for mediation in order to protect their rights, they will no longer have the option of representing themselves but will now be forced to make use of legal representation just to be placed on an equal footing as their opponent. The ultimate question will then be- will justice for all still prevail?
Contact your SEESA Labour Advisor to assist your business with the virtual proceedings queries you might have. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the Author:
Eljo van der Walt is a Labour legal advisor at the SEESA George branch. She obtained a Bachelor of Law (LL.B degree) from the University of the Free State in 2010. In 2011 she obtained a Master of Law (LL.M degree) from the University of the Free State and was also part of the team who represented the University of the Free State at the International Willem C. Vis moot court competition in Vienna. She completed her articles of Clerkship in 2012. After admission she practiced as an attorney for 5 years before starting at SEESA.
Resources:
- www.scholarship.law.wm.edu, accessed 1-9-2016
- Keith Kaplan (2013) 52(2)The Judges journal 32
- Labour Relations Act (LRA)
- The Labour Court refused to entertain “self-serving” preferences which were ignorant of health and safety requirements: Hilda Grobler Lexis Nexis pb 26 Aug 2021
- The SCA and the High Court refuse to tolerate objections to virtual hearings: Hilda Grobler Lexis Nexis pb 23 July 2021
[1] www.scholarship.law.wm.edu, accessed 1-9-2016
[2] Keith Kaplan (2013) 52(2)The Judges journal 32
[3] Labour Relations Act (LRA)
[4] The Labour Court refused to entertain “self-serving” preferences which were ignorant of health and safety requirements: Hilda Grobler Lexis Nexis pb 26 Aug 2021
[5] The SCA and the High Court refuse to tolerate objections to virtual hearings: Hilda Grobler Lexis Nexis pb 23 July 2021