“How do you conduct an open court if everything is remote and you only have the participants [in the virtual hearing]?” asked Judge Glenn Goosen, an acting justice in the Supreme Court of Appeal, at a panel discussion on accessing justice and online courts, on Wednesday.

At the hybrid panel discussion, which had guests online and in person,  hosted by the Hanns Seidel Foundation and UCT’s Democratic Governance and Rights Unit, Goosen asked: How do we ensure that we’re accountable and transparent when so many people are being excluded from what’s happening? 

To address this challenge, the Eastern Cape High Court decided to record its sessions and post them on YouTube, said Goosen. The Constitutional Court also regularly posts its sessions on YouTube.

Speaking to Daily Maverick after the panel discussion, Alison Tilley, an attorney and coordinator of the Judges Matter campaign, said that the courts are based on the notion of open justice. 

“They’re based on the fact that anyone can walk into the courts and hear matters; now with them moving online, many people are left out in the cold.” 

When you consider that there are thousands of courtrooms in South Africa, probably only a small percentage of them have their hearings on the internet, said Tilley. 

Also, a number of courts don’t have electricity or water and when it came to migrating online, they just closed, said Tilley.

During the hard lockdown, criminal and civil cases weren’t heard at all until lockdown regulations were eased around May, said Judge Roland Sutherland, Acting Judge President of the Gauteng High Court.

For Sutherland, who’s based in Johannesburg, the move to online was smooth, but “there were some compromises because it meant that people can’t attend and this inhibited transparency”.

During the Q&A session, Professor Dawie de Villiers from the University of Johannesburg law faculty asked what happened in a case where applicants argued that by not allowing them to appear in court, their right to cross-examine was being infringed. Whose decision would it be to decide whether the court is heard in person or online, asked De Villiers.

Judge Jakkie Wessels, the president of the Limpopo Regional Court, replied that the practice of people testifying virtually wasn’t new. In some criminal cases, people have done so via CCTV cameras, so that could be applied here, or a hybrid approach could be implemented, where not all the parties were present.

“Although judges adjusted quite quickly [to virtual hearings] it was difficult when it came to internet access, [because] some people’s quality of internet access wasn’t good,” said advocate Tererai Mafukidze.

To address this, some judiciary staff allowed legal practitioners or witnesses to make use of the court’s devices, said Judge Dunstan Mlambo, the Judge President of the Gauteng Division, through the comments section.

An advantage of moving online was that expert witnesses could now appear wherever they were based, instead of travelling to another city, said Mafukidze.

“What I think will happen in the foreseeable future is that unopposed hearings will remain virtual, so will leave to appeals. But we need to ensure that everyone has adequate access to the internet so that there are fewer disruptions [to virtual hearings],” said Mafukidze. DM