CMS Expert Guide to Digital Litigation in South Africa

Prior to the COVID-19 pandemic, the digitalisation of the justice system with South Africa's Office of the Chief Justice had advanced with the introduction of an end-to-end E-Filing system for high courts, which is now called Court Online. The COVID-19 Pandemic accelerated this digitalisation process.

On 15 March 2020, President Cyril Ramaphosa declared a national state of disaster through the Disaster Management Act 57 of 2002. In section 27 of the Act, the President is authorised to declare a national state of disaster and implement measures to regulate the movement of persons in an area declared as disaster stricken and to take other steps as necessary to prevent the disaster from escalating or to alleviate, contain and minimise the effects of the disaster.

Subsequent to the declaration of national state of disaster, on 27 June 2022 the Office of the Chief Justice issued a directive to the effect that all new matters, as at 18 July 2022, shall be initiated on Court Online, which is an end-to-end e-filing and digital case management and evidence management platform to be used by lawyers and litigants for purposes of high court matters.

Traditionally, courts in South Africa did not allow electronically signed documents. However, in the wake of COVID-19 and the introduction of Court Online, electronically signed court documents are now accepted by the high courts in South Africa. The Electronic Communications and Transactions Act 25 of 2002 (ECTA) governs electric signatures. According to section 13(3) of the ECTA, an electronic signature is a method used to identify a person and such person’s approval of information. As such, lawyers and/or litigants may use electronic signatures to sign court documents as long as the signature sufficiently identifies the person and his or her approval of the documents sent.

The legal world is ever changing and one such change is the integration of technology in law. In this regard, South Africa has made an effort to adapt to the use of technology in litigation by introducing some digital tools and technical measures that will progressively develop the South African litigation system.

One of the main digital tools that is used in the South African litigation system is Court Online, the end-to-end E-Filing system, which is referenced above and enables both lawyers and litigants to file their pleadings and documents to the court electronically with ease. Court Online effectively allows Courts to easily manage the influx of cases by allowing electronic documents submitted on the platform to automatically reach the relevant Registrars and Registrars' Clerks for processing. This in turn leads to faster processing of documents and quick turnarounds for both lawyers and litigants.

Online Court hearings were introduced in South Africa in 2020 because of COVID-19. The use of digital tools requires some form of technical measures. In this regard, the Office of the Chief Justice issued Practice Directives in 2020 and 2022 to the effect that court hearings can be conducted online through the use of videoconferencing and/or video-link. Therefore, currently in South African courts, hearings are held predominantly online.

The state of the South African litigation system currently relies heavily on the use of technology. As such, a platform like Court Online is utilised by lawyers and litigants on a daily basis. As a result, most court hearings occur virtually, even after the national state of disaster declaration ceased.

In terms of the Practice Directive issued by the Office of the Chief Justice in 2022, as of 18 July 2022 all cases in the high court must be initiated in Court Online and no longer in person. In the event that counsel has initiated a matter in-person, they must initiate this matter though the Court Online platform. Court Online is mandatory for lawyers and litigants.

However, online court hearings are optional. The Practice Directive issued by the Office of the Chief Justice in 2022 provided that although court hearings can be conducted online using videoconferencing and/or video-link, judges still have the discretion to choose whether a matter will be heard virtually or in-person. This discretion can also be exercised should one of the parties request an in-person hearing. Furthermore, the Directive also provides for hybrid court hearings in which both in-person hearings and online hearings can be utilised by judges at their own insistence.

In light of the above, both lawyers and litigants are mandated to utilise Court Online in the initiation of a case and subsequent submission of documents. However, the mode of hearing is optional, at the discretion of the judge. The majority of hearings in South Africa are held online through videoconferencing and/or video-link.

South Africa cannot be regarded as fully digitalised. Although there are certain cases in terms of which a matter is fully initiated online and the hearing thereof is also online, South Africa does not have a fully and integrated digitalised litigation process in place yet as some matters (at the relevant judge's insistence) can be heard in person.

As mentioned above, matters are required to be initiated online because courts no longer accept in-person matter initiations. However, the same cannot be said about online court hearings because the question of whether or not a court hearing will be conducted online or in person lies in the discretion of the relevant judge.

Therefore, some elements of the South African litigation system are delaying the complete digitalisation of the litigation system. Firstly, even though judges are permitted to use videoconferencing and video-link as modes of online hearings, it is not a requirement for court proceedings to be conducted either fully online or completely in-person. As such, judges have the discretion to decide on a mode of hearing for matters before them.

Secondly, although most matters in South Africa are successfully heard virtually, there are some downsides to this. In the first instance, there are some lawyers and litigants who reside in remote areas within South Africa's borders with limited infrastructural facilities and no high-speed internet access, which restricts their ability to successfully attend online court hearings. In the second instance, some lawyers and litigants do not have access to proper equipment, such as laptops, computers and/or smart devices, which will enable them to access online court hearings. Thus, this limits access to justice because not everyone has the ability to access hearings that are conducted virtually.

As such, for the South African judicial system to be fully digitalised, the courts and/or the South African government would need to ensure that every lawyer and litigant has access to tools and equipment, which will ensure that everyone has access to the justice system, including online court hearings.

The practice directives issued by the Office of the Chief Justice during the period of 2020-2022 dealt with the way in which the digital processes of Court Online are to be handled is one set of rules in place to regulate the use of technology in litigation within South Africa.

In addition to the above, the Law Society of South Africa (LSSA) in 2015 introduced guidelines to assist lawyers and litigants when it comes to the use of cloud computing, which could also be considered the use of technology in litigation.

The LSSA has provided the following guidelines for lawyers in this regard. The LSSA provides that lawyers have a duty of competence, which translates to lawyers being aware of the risks of using technology to store data and information, and to be aware of how such data and information is stored. Secondly, the LSSA provides that lawyers have a duty to keep up with the changes in the law and increased risk in the use of technology. Furthermore, the LSSA provides that lawyers must exercise due diligence in relation to using technology and third-party sources (e.g. Court Online) to store and/or upload client data and information.

The LSSA provides that lawyers must also exercise caution in relation to information security for information received from clients, owing to the introduction of the Protection of Personal Information Act 4 of 2014 (POPIA).

COVID-19 has proved it necessary for the justice system to be digitalised. As such, the South African Department of Justice and Correctional Services has made an effort to digitalise and modernise the South African justice system.

In the year 2022, the Department of Justice and Correctional Services launched several pilot projects, which will aid in reforming the South African justice system. These projects include the Maintenance Online Services, which was rolled out in the Family Court and will mostly be utilised by those in legal family disputes. The second project was the Trusts Online Services, which will assist lawyers and/or litigants with online registration and submission of documents in trust applications. This project was piloted at the Pretoria Master's office with identified and reliable agents that use the online portal.

The third project was the Deceased Estates Online Services, which will assist lawyers and/or litigants with online registrations and submission of documents in disputes surrounding deceased estates. The fourth project was the State Attorney Management System, which essentially allows end-to-end management and tracking of state attorney cases.

Court Online, as mentioned above, can also be regarded as one of the pilot projects. This portal has already been set up and is used by courts to minimise paper court documents, which before were physically submitted by parties in court. Court Online allows for the electronic storage of documents, resulting in faster document processing and retrieval, and minimising the risk of misplaced files.

There are currently no rules that apply to the use of Artificial Intelligence in South Africa as it relates to litigation.

There are no specific technical measures in place yet relating to the prevention of unwanted access or IT-security breaches.

As mentioned in Question 2, the litigation system in South Africa uses Court Online to initiate cases and store documents submitted by lawyers and litigants. It is important to note in this regard that Court Online is not a stand-alone platform. It is hosted by the company Thomson Reuters, which specialises in the collection and provision of data and information. In this regard, there are rules in place that relate to the use and processing of data.

The Protection of Personal Information Act 4 of 2014 (POPI Act) is legislation that addresses the processing and protection of data. The POPI Act protects the processing of personal data and provides minimum requirements for this processing. According to section 9 of the POPI Act, data must only be processed if it is lawful and in such a manner that does not breach the data subject's right to privacy. However, such data can be processed if the data collection company (i.e. the "responsible party") has inter alia received the consent of the data subject (section 11(1)(a) of the POPI Act).

In addition to obtaining the data subject's consent, the responsible party must adhere to eight principles in the POPI Act in order to process data. These are accountability (which requires data processing to follow the POPI Act); processing limitation (which requires the data to be processed lawfully and in a manner that does not breach the data subject's privacy); purpose specification (which requires data to be processed for a specified and explicit reason relating to a function or activity of the responsible party); further processing limitation (which provides that data already collected may be processed further, but only in limited circumstances such as for the conduct of court proceedings); information quality (which requires the responsible party to ensure that data collected is complete, correct and not misleading); openness (which provides that documents for all processing operations must follow the Promotion of Access to Information Act, 2000); security safeguards (which requires a responsible party to contain the integrity and confidentiality of personal information by putting technical and organisational measures in place to prevent loss, damage, unwarranted access and destruction of personal information) and data subject participation (which requires the involvement of the data subject in processing the data).

As such, the above rules were put in place to ensure adequate protection of data and the protection of individuals from unwarranted access to their personal information.

At this stage, there are no known risks for businesses in the wake of the rise of legal tech companies.

As mentioned in Question 7, there are currently no specific tools or processes, such as legal chatbots, in the South African legal system. However, the Court Online platform is a good example of an attempt to improve accessibility to legal services.

In light of the above, South Africa still needs to catch up with international practices in the creation of AI tools and processes to assist lawyers and litigants in the efficient and effective management of cases. Currently there are no tools, which provide lawyers with the documents and processes needed to initiate cases. Instead, the courts roll out "Practice Directives" yearly (or as is required) to keep lawyers and litigants updated on court processes. As such, there is a need for the creation of AI tools in this regard.