CHAPTER THREE- SOUTH AFRICAN CIVIL PROCEDURE RULES AND E-TECHNOLOGY
Chapter 3 provides an analysis, interpretation, and application overview of the rules of court applicable in South African civil proceedings, adjunct to legislation discussed in chapter 2. The analysis will illustrate breaches in the implementation of the ECTA, determine the extent thereof, and consider possible solutions to cure the identified lacunae. The aim of the chapter is to review the current rules regulating the law of civil procedure and provide a solution to the gaps identified to ensure that South African civil procedure is abreast with developments in e-technology law.
The Rules Board for Courts of Law Act 107 of 1985 aims to ensure that South African court officials regulate process and efficiently manage courts.1 The Act confers the Rules Board with powers to make rules for the respective courts.2 The Rules Board is likewise responsible for reviewing current rules to ensure compliance with legislation such as the ECTA and e-technology law.3There are rules for respective courts of South Africa.4 According to Harms, the rules are binding and must be complied to.5
Rules regulate proceedings in the Constitutional Court,6 seem advanced in embracing e-technology compared to other rules of courts. For example, they enable parties to use electronic communication when filing court documents.7
Likewise, rules ensure efficient functioning of the Supreme Court of Appeal.8 It is submitted that this set of rules require analysis which insofar as implementing e-technology law. The Uniform Rules of Court, which regulate the superior courts, require scrutiny and development to ensure that they are au courant with the advancing e-technology law.9 In addition, Magistrates’ Courts Rules require amendment insofar as implementation of e-technology law is concerned.10
Small Claims Courts Rules are different from the other rules concerning the way the proceedings are conducted, for example, there are no judges in this court.11 The current Rules of the Small Claims Court do not competently support the implementation of the ECTA and require amendment.12
Rules regulating South Africa courts structures and proceeding, as they relate to civil procedure, and their lack of congruence with the ECTA and e-technology legislation are discussed below
Constitutional Court Rules No R1675 of 2003
Before discussing Constitutional Court Rules, it is practical to discuss attempts to embrace e-technology in the Constitutional Court.13 For instance, the Constitutional Court website gives a summary of the court roll.14 The site also contains information pertaining to the rules of court.15 Furthermore, it contains details of court officials and judgments delivered by the court.16
The website gives details of judges and other relevant information important to the operation of the Constitutional Court.17
It is submitted that the website requires modification to enhance the use of e-technology but that it is at least an attempt to embrace online communication. Online communication, which is information orientated, does not go to the heart of court process and rules.
The Constitutional Court is the apex court as previously indicated in chapter 2.18 Civil proceedings operate in accordance with the rules of the Constitutional Court.19 Certain rules are identified as misaligned with the ECTA provisions and other e-technology, relating especially to the manner in which proceedings are brought before court.20
For example, it is common cause that the Constitutional Court deals with appeals from lower courts and therefore proceedings commence by notice.21 Rule 4 notices, directions, and communication acknowledge the use of e-technology.22 Electronic copies of court documents may, for example, be submitted using e-technology.23 Constitutional Court Rule 1(4) states:
“Notices, directions or other communication in terms of these rules may be given or made by registered post or facsimile or other electronic copy; Provided if a notice or other communication is given by electronic copy, the party giving such notice or communication shall forthwith lodge with the registrar a hard copy of the notice or communication, with a certificate signed by such a party verifying the date of such communication or notice.”24
Analysis of this Rule proves that the drafters intended to implement the ECTA. The Rule is however qualified by the proviso that hard-copies must be filed after parties have submitted electronically. While prima facie the use of electronic means is allowed, the requirement of hard-copy filing tautologises the process.
Du Plessis et al confirm that one of the few duties of the Registrar regard is to number and file court papers.25
Scholars acknowledge that the Registrar is approachable when one of the parties is unfamiliar with court process and can seek guidance in this regard.26 Further, parties in the Constitutional Court can easily communicate with the Registrar via phone or e-mail.27 It appears that scholars acknowledge the need to embrace electronic communication with court officials but, it is submitted, this is insufficient. It is argued that South African court processes must be in-line with international standards and e-technology law as is the case in England.28
According to Rule 10, the Registrar is obliged to keep court records.29 In terms of Rule 10 the Registrar cannot allow parties to remove court documents.30 The Rule, however, does not indicate whether the Registrar should keep electronic archives of submitted documents. Therefore, it is suggested, hard-copies should be scanned and converted to PDF format and thereafter archived instead of keeping hard-copies only. Advancing technology means that, in future, everything will be digitized, and printing of documents and hard-copies will become obsolete. Thus, South African court procedure must begin embracing e-technology in all respects but particularly in her apex court, which dictates direction to lower courts.
Rule 18 provides that application to Court for direct access is lodged with the Registrar. The Rule requires parties to sign the application. The Rules however do not indicate whether electronic signature is accepted. Papadopoulos and Snail 31 profess that in practice documents are in writing and therefore logically must be signed.32 Therefore, it is argued that electronic signature on applications should be accepted. This is, however, not currently the case within the confines of the Rule. Rule 4 refers only to electronic copies but there is no reference to the use of advanced electronic communication as provided in section 1 and 13 of the ECTA. There is a need for the rules to support the use of advanced electronic signature to ensure compliance with the ECTA and international standards.
Rule 20 refers to the pagination process, which is a long-standing rule in practice.33 This requires literal manual numbering of pages, which is not in-line with advancing e-technology. There is a need to develop this practice to align with e-technology. Rule 20 is mandatory judging from the use of the word shall in its text.34 This calls for a review of the pagination process described in Rule 20. In the researcher’s view, if documents are electronically submitted and numbered correctly, it satisfies the requirements of order whether manual or electronic. In the alternative the index should be drafted in a manner that incorporates all pages of the documents; and should be scanned and saved as PDF in an archive file where court papers are saved. The scanned document, with the correct numbering, should suffice, as opposed to expecting parties to send a candidate attorney to paginate the court file. This will save the courts’ time as well the respective parties. The same applies to the requirement that the bulky records should be bound.35
Further, copies of the record require separation into sizes per volume.36 Interpretation of this Rule demonstrates that the requirement is compulsory.37 This can be circumvented using e-technology instruments or facilities. For example, one file could be created, and all documents could be archived there. This will save time for the court and respective parties. It appears that there was good reason for drafting the requirement relating to bulky records.38 However, times have changed, and South African courts must embrace e-technology when implementing rules of civil procedure. In the future everything will be digitalized, courts proceedings included.
Rule 20 further requires documents to be secured in covers.39 The cover must show particulars of the parties to the case, for example, the names of the parties.40 Once again, this Rule uses the word shall illustrating that it is compulsory. The same Rule further sets out an additional requirement that the volume numbers should appear on the spine of the document.41 The Sub-Rule uses the word shall and this confirms that this rule is mandatory.42
To a certain extent Rule 20 recognises the use of e-technology in Constitutional Court proceedings.43 Interpretation of the Rule however requires duplication of work. Duplication refers to the process of making hard-copy documents after filing or serving electronically. If the Registrar archives documents, there should be no further obligation on the parties to supply hard-copies. Therefore, it is sufficient to file electronic copies via electronic communication through the Registrar, who in return should keep all documents electronically in an archive file.44 The current Rule only enables the Registrar to copy the file from disk.45 This disk is returned to the supplying party.46 Duplication is a waste of financial and human resources that could be used for other projects.
There is an obligation on the party to lodge 13 copies of documents.47 It is submitted that hard-copy duplication is excessive 48 and could be prevented by resorting to an electronic system that enables the court to file,49 store, and archive documents without concern over the volume of documents. It is argued that a party should be given a choice to file or lodge via electronic communication, for those who have access to e-technology, or to file manually for those who do not, particularly in rural areas. The added requirement to lodge 13 copies after filing electronically, is a waste of court officials’ and the legal representatives’ time, which view is supported by scholars.50 It is submitted that this Rule should be amended to embrace e-technology and pave the way for the use of digital technology in future. The researcher submits that legislative drafters should move away from paper-based communication towards digital communication technology.
Du Plessis et al observe that proceedings in the Constitutional Court are open to the public.51 Scholars confirm that Constitutional Court proceedings do to a certain extent use e-technology.52 For example, the proceedings may be televised, provided that cameras do not move around the courtroom.53 This research does not venture into the field of open justice.
Rule 22 supports taxation of party-on-party costs by the Taxing Master. The attorney for the successful party must comply with this Rule.54 It is common cause that the taxation process requires attorneys to physically attend the office of the Registrar, and work together with the Taxing Master, regarding taxation of the bill of costs. As important as this Rule may appear, it is time that the way the process is conducted is reviewed.
For example, there is no need to physically attend; attorneys and Registrar could manage this process through exchange of documents and finalise matters through e-technology. Du Plessis et al discuss the case of Hennie de Beer Game Lodge CC v Waterbok Bosveld Plass CC and Another.55
In this case, the Constitutional Court was asked to review a bill of costs presented to the Taxing Master for an amount of R 129 504 subject to a discount.56 This case sets out principles to be followed 57 when parties review the decision of the Taxing Master.58 It was argued the Taxing Master should not have allowed a fee for 61 hours for drafting a 62 pages affidavit.59 The nub of the issue that led to the dispute was that the Applicant wanted to erect a camp in a private nature reserve.60 The Respondent applied for an interdict which was dismissed by the court a quo.61 The Respondent appealed and the interdict was granted with party-on-party costs.62 The Respondent presented the bill of costs which allowed, including the 61 hours of drafting.63 There was a 10% discount to the original amount, which the Taxing Master allowed.64
In the Constitutional Court, it was argued that 61 hours for a 62 page affidavit was excessive.65 Furthermore, it was submitted, that the hours were unreasonable.66 The Constitutional Court held that courts must consider all circumstances when reviewing taxation.67 In addition, the Court found that it will not readily interfere with decisions by the Taxing Master68 unless there is an error in judgment as was the case in this instance.69 Thus, the Taxing Master erred in allowing 61 hours for fees70 and the Court reduced this to 20 hours.71 Accordingly, the decision of the Taxing Master was set aside.72
Du Plessis et al are of the view that courts will not readily interfere with decisions by the Taxing Master.73 The court will depart from such a decision when there is a material difference between the court’s decision and that of the Master.74 Du Plessis et al’s view demonstrates the significance of the taxation process in practice and the fact that legal practitioners work hard on matters.75 Therefore, legal practitioners ought to be rewarded as such and this is achieved through taxation.76 It is argued that the taxation process, in its current form, does not embrace the use digital or e-technology, because parties are required to appear physically in the office of the Registrar to present the bill of costs. Any dispute would require physical appearance, but simple taxation could be facilitated via electronic exchange of documents.
It is evident that there is, to some extent, advancement in the rules of the Constitutional Rules of court77 in that they allow parties to lodge an appeal electronically.78 Additionally, the rules enable parties to keep documents on computer disk for presentation to the Registrar.79 Electronic filing is however subject to an obligation, to thereafter file hard-copies.80 The researcher submits that this procedure requires modification in-line with her argument to embrace e-technology within court process.
The Constitutional Court, to a certain extent, embraces e-technology as judgments are loaded on the website.81 Furthermore, the website contains certain court documents such as pleadings.82 Scholars further acknowledge the blog website of the Constitutional Court.83 Du Plessis et al demonstrate that there is a move, albeit slow, towards embracing e-technology in the Constitutional Court but it is argued that this is insufficient when judged against, for example, England which already has a pilot in place that is totally embracive of digital and e-technology in civil process.
The researcher avers that, although there is recognition of e-technology the Rules need modification to implement the ECTA and other e-technology provisions
Rules Regulating the conduct of proceedings of the Supreme Court of Appeal84
There are minor indications of attempts, however modest, by the Supreme Court of Appeal to adopt the use of e-technology. For example, the Court has developed a website.85 The website provides an overview of relevant information about the court, such as judgments delivered.86 Further, an electronic copy of the Rules of Court are provided on the site87 as well as information regarding the court roll.88
Furthermore, the website provides the details of court officials89 who manage court processes.90 It is submitted that this website requires adaption in-line with suggested amendments provided in the last chapter of this research. At this juncture it suffices to state that the website has short-comings and is insufficient in a similar manner to the Constitutional Court website discussed above.
Concerning the Supreme Court of Appeal, it is of importance to illustrate the processes of managing and running efficiently and effectively.91 It is important to start with the relevant definitions pertinent to this research.
The Rules define lodging of documents with the Registrar as:
“…lodging of documents with the registrar” means the lodging of documents with the registrar through an attorney practicing in Bloemfontein or, if a party is not represented by an attorney, by registered post or by that party personally, after prior service of copies of such document on any other party.”92
Interpretation of the Rule confirms it does not cater for the use of e-technology; for instance, it makes provision for lodgement of documents with the Registrar through an attorney and makes no mention of alternative e-technology methods of lodging.
Although the above definition does not make specific reference to electronic e-technology, it can be argued that there is some of level of acknowledgment and recognition in Rule 4 which permits electronic copies.93 This acknowledgment is limited because the Rule requires filing of original hard-copy documents after electronic submission.
Rule 4 compels the Registrar to number the notice that commences proceedings manually.94 The Rule is silent on electronic use in the process of numbering.9
CHAPTER ONE – RESEARCH BACKGROUND AND METHODOLOGY .
2. Research background and historical contextualisation
3. Problem statement
4. The Electronic Communications and Transactions Act 25 of 2002 and associated statutes
5. Purpose of research
6. Research question
8. Overview of chapters
CHAPTER TWO – SOUTH AFRICAN CIVIL PROCEDURE LEGISLATION AND E-TECHNOLOGY
1. Introduction .
2. Synoptic overview of the development of the Electronic Communications and Transactions Act 25 of 2002
3. Electronic Communications and Transactions Act 25 of 2002
4. Statutes affected by the Electronic Communications and Transactions Act 25 of 2002
5. Rules of Statutory Interpretation and enforcement of the Electronic Communications and Transactions Act 25 of 2002
6. Protection of the right to privacy
7. Protection of Personal Information Act 4 of 2013453
CHAPTER THREE- SOUTH AFRICAN CIVIL PROCEDURE RULES AND E-TECHNOLOGY
2. Constitutional Court Rules No R1675 of 2003
3. Rules Regulating the conduct of proceedings of the Supreme Court of Appeal84
4. Uniform Rules of Court 2009
5. Magistrates’ Courts Rules
6. Rules regulating matters in respect of Small Claims Courts
CHAPTER FOUR – COMPARATIVE ANALYSIS OF CIVIL PROCEDURE AND E- TECHNOLOGY
3. United States of America
CHAPTER FIVE – CONCLUSIONS AND RECOMMENDATIONS
1. Research conclusions
4. Current statutory provisions and rules and recommendations
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