PRACTICE DIRECTION - SUPREME COURT OF APPEAL VIDEO OR AUDIO HEARINGS DURING COVID-19 PANDEMIC
This Practice Direction supplements the Practice Direction issued on 24 April 2020. It is made under the powers delegated by the Chief Justice in his directives issued on 17 March and 17 April 2020 and by virtue of the authority vested in the Heads of Court in terms of s 8(4)(b) of the Superior Courts Act 10 of 2013. It relates to virtual hearings only and comes into force with immediate effect.
INTRODUCTION
In light of the COVID-19 pandemic it has become necessary to introduce directives to regulate the manner in which hearings are conducted in the Supreme Court of Appeal.
Virtual hearings are the default position until further direction. The primary aim is to ensure ongoing access to justice by all parties to cases before the court and safety from infection whilst facilitating hearings that allow parties to participate as fully as possible.
COURT'S APPROACH
1. The virtual hearings may be conducted by way of telephone or video-web conferencing solutions, if available. There is currently no 'single' technology to be used by the judiciary and the court and parties shall choose from a variety of platforms, including Microsoft Teams installed on judicial laptops, Webex, Zoom or any other appropriate and convenient means of virtual communication as directed by the court.
2. Notwithstanding the default position, the court's permission, requested through the registrar, is still required for all or any part of the proceedings to be dealt with by way of virtual hearing.
3. There may be some cases that will need to be adjourned because a virtual hearing is not possible, and an in-person hearing would not be safe or possible. These should be identified promptly and notice thereof given to the registrar.
4. A telephone or video conference involving only litigants in person is permissible as is a conference with only legal representatives or any combination.
5. Where the court directs that one of the parties is to host or arrange the hearing that party shall be treated as being authorised to, and entitled to, host the relevant hearing.
6. The particular platform must be agreed at the outset of each case. Upon request, parties are to provide the registrar with the individual email addresses and WhatsApp contact details for each of the participants including attorneys and client representatives. Whichever platform is identified for the virtual hearing, some basic rules will apply. Set out here are guidelines; the list is not closed and many of these issues will need to be navigated on a case by case basis in accordance with the directions of the presiding judge:
(a) Virtual hearings are court hearings and the solemnity of the occasion should be observed as closely as it is in a courtroom, with the judges present, notwithstanding the domestic location of some or all of the participants. The manner of address during virtual hearings will be similar to the manner of address during in-person hearings. Judges and legal representatives will be required to robe. The Court may, however, elect to dispense with any of the usual formalities, and the parties are expected to act accordingly.
(b) Participants are required to be considerate to the other participants and the judges when setting up their physical environment from which to conduct a virtual hearing. Background noises should be reduced to a minimum and avoided where at all possible. Counsel and other participants should be alone, in a secure room, with the doors closed. Computers must be situated facing any light source such as the window and not the light behind the participant. Wherever possible the participant should be seated in front of a blank wall or similar backdrop to avoid distractions.
(c) Any firewall and security restrictions must be identified and resolved before the virtual hearing commences. Testing of the video and audio feed of each party and counsel should take place before the allotted hearing time and before the judges join the hearing. If required counsel must be available for a video or telephone conference with the presiding judge shortly before the commencement of the hearing, in order to discuss arrangements for the hearing.
(d) Hearings will start promptly at the scheduled time and the judges will aim to be present from that time. The matter will be called and the presiding judge will ask for appearances. More detailed information than is normally provided may be required or provided and the framework and the practicalities of the hearing will be determined so that the court is satisfied that the hearing can properly proceed and that all participants understand what will occur and what they are required to do as well as the limitations of the technology and the adjustments to be made to cater for these.
(e) The presiding judge will set out the court's preference for dealing with interruptions. It may be required that all video cameras are switched off and turned on to indicate that one wishes to interject or contribute a point. It may also be required that all video cameras remain on throughout and interruptions may be allowed through turning off the mute button. When counsel or a participant is not speaking their microphone should be set to mute and unset when they speak.
(f) If time is required one legal representative should be responsible for maintaining email communication with the presiding judge or the registrar so that requests for more time may be addressed quickly.
(g) All video and audio enabled virtual hearings must be recorded. Subject to court direction, responsibility for recording and management of the audio recording will fall on the party or court that has organised the virtual hearing. Where the host of the hearing is a legal representative, she or he must, immediately following the hearing, provide to the court a link to the record which shall be posted on the court's website.
(h) No party may record the hearing without the permission of the court.
(i) Where one party is unable to attend a remote hearing by way of an electronic communication platform (for example, where they do not have access to the relevant technology or have a very poor Internet connection) but can attend by telephone, the virtual hearing may be held by telephone conference call, to be arranged by the applicant or by the court where no party is represented.
(j) The attendance of the media shall be accommodated as far as possible in a virtual hearing when requested in order that the public interest may be served. Representatives of the media wishing to attend a hearing shall contact the Registrar, to indicate their wish to do so and arrangements will be made accordingly through the presiding judge's secretary.
(k) In the event of unforeseen or unavoidable technological glitches, the hearing will be stopped to address those glitches. If the hearing cannot be resumed a fresh hearing shall be arranged and the participants advised accordingly.
M.M. MAYA
PRESIDENT OF THE SUPREME COURT OF APPEAL
BLOEMFONTEIN
Dated at Bloemfontein on 29 April 2020
COURT DIRECTIVE RELATING TO THE MANAGEMENT OF CASES DURING THE SECOND COURT TERM, 1 MAY TO 31 MAY 2020, INCLUSIVE: SUPREME COURT OF APPEAL (24 APRIL 2020 DIRECTIVE)
1. This directive is issued pursuant to the directives issued by the Chief Justice on 17 March 2020 and 17 April 2020, and by virtue of the authority vested in the Heads of Court in terms of s 8(4)(b) of the Superior Courts Act 10 of 2013, and comes into effect today, 24 April 2020. It is informed by the Government's call to adopt precautionary measures and limit physical contact among persons to minimize the risk of transmission of Covid-19.
2. Whilst the court building shall remain open for essential work, there shall be no physical court sittings in the Supreme Court of Appeal during the May 2020 court term.
3. Remote hearings are envisaged and the parties whose cases are enrolled for hearing during the May 2020 court term and all other interested parties shall, in appropriate practice directives, be advised in due course of the precise manner in which the hearings shall be conducted including the web-based video conferencing platform that will be used. Participants will then be required to provide the registrar with the necessary contact details in advance of the hearing dates.
4. If any party is of the view that an in person oral hearing cannot be dispensed with, such party will be directed to make representations in writing to the registrar as to why the appeal requires an in person oral argument and the presiding judge will issue an appropriate directive, including, if necessary, an order that the matter be adjourned sine die.
5. Parties wishing to have their matters disposed of without the hearing of oral argument, in terms of s 19(a) of the Superior Courts Act 10 of 2013, shall notify the registrar of that intention immediately after they reach agreement and may, with the leave of the presiding judge, each file supplementary written submissions not exceeding 10 pages within 7 days of their agreement.
M.M. MAYA
PRESIDENT OF THE SUPREME COURT OF APPEAL
BLOEMFONTEIN
Dated at Bloemfontein on 24 APRIL 2020
LETTER TO ATTORNEYS, THE GCB, THE CONSTITUENT BAR COUNCILS, LAW SOCIETIES AND THE LEGAL PRACTICE COUNCIL
In the light of the Covid 19 Pandemic, courts globally have found it necessary to direct that hearings, which are normally held in public, should proceed remotely. We are no exception. The Supreme Court of Appeal has accordingly resolved that:
(a) It will not conduct physical hearings in May 2020.
(b) Parties with matters that are set down for hearing during the term will be invited to indicate if they wish to have their matters disposed of without oral argument in terms of s 19(a) of the Superior Courts Act 10 of 2013. Those amenable to this course may, with the leave of the presiding judge, file brief supplementary heads of argument, if so advised. The presiding judge will specify the length of and fix the date for the filing of the supplementary heads.
(c) Hearings will proceed via web-based video conferencing.
(d) If any party is of the view that an in person oral hearing cannot be dispensed with, such party will be directed to make representations in writing to the registrar as to why the appeal requires an in person oral argument and the presiding judge will issue an appropriate directive, including, if necessary, an order that the matter be adjourned sine die.
We have requested the IT department at the Office of the Chief Justice to rapidly upscale our IT infrastructure. Once that has been done and a suitable web-based video conferencing platform identified, that will be shared with the profession. Participants will then be required to provide the registrar with the necessary contact details in advance of the hearing date. We appreciate that litigants, their legal representatives and judges participating in proceedings from different geographical locations via web-based conferencing, can undoubtedly be challenging. However, as daunting as those challenges may be, the course that we are proposing is, in our view, preferable to the business of the court being suspended indefinitely.
In due course appropriate practice directives regarding remote hearings will be issued. As the May term is but a fortnight away, we would appreciate your prompt response, if any, to the proposals outlined above or for that matter any other constructive suggestions that would assist in bringing this initiative to successful fruition. As matters unfold, we may be obliged to find alternative measures. Those will be communicated to the profession.
Your feedback to the Registrar on this proposal is expected by 9 am on 22 April 2020.
M.M. MAYA
PRESIDENT OF THE SUPREME COURT OF APPEAL
BLOEMFONTEIN
COURT DIRECTIVE RELATING TO THE MANAGEMENT OF CASES DURING THE LOCKDOWN PERIOD, 26 MARCH -16 APRIL 2020: SUPREME COURT OF APPEAL
By virtue of the powers delegated to me by the Chief Justice in terms of s 8(3) of the Superior Courts Act 10 of2013 and following consultation with him, I hereby issue the following Directive:
It is in the national interest that all non-essential staff stay home during this period, in accordance with the Presidential injunction of 23 March 2020 regarding Covid-19. To fulfil that objective -
1 The Supreme Court of Appeal shall remain open for the limited purpose of receiving due court process and adjudicating urgent matters.
2 The Court Director and the Registrars shall prepare and circulate a duty roster of the skeleton staff, whose attendance at work shall be strictly required for the performance of official duties during this period. The members of staff whose names do not feature in the duty roster must remain available, on standby, should the need arise to assign them duties.
This Directive shall be interpreted and given effect to align with the directives issued by the Chief Justice and any regulatory instrument issued by the designated Minister in tenns of the Disaster Management Act 57 of2002 for the management of courts and the administration of justice during the lockdown period.
Dated at Bloemfontein on 26 March 2020
SUPREME COURT OF APPEAL PRACTICE DIRECTIVE 1/2018
The President of the Supreme Court of Appeal hereby issues the following Practice Directive in respect of an application lodged with the Supreme Court of Appeal in terms of section 17(2)(f) of the Superior Courts Act, 10 of 2013.
Subject to any other directives issued by the President of the Supreme Court of Appeal, Practice Directives are binding and have legal force and effect. This Directive does not seek to override the Rules of the Supreme Court of Appeal, which have the force of law and may be amended from time to time and when circumstances so dictate.
Any reference in the Directives to 'Rules' refer to the Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal published under GNR. 1523 of 27 November 1998, amended by Government Notice R979 of 19 November 201 0; Government Notice R191 of 11 March 2011; Government Notice R113 of 15 February 2013 and Government Notice R 1055 of 29 September 2017, as amended.
Practice Directives are procedures dictated by general experience and no interpretation of them should have the effect that access to justice is denied to any litigant, in particular the indigent.
SUPREME COURT OF APPEAL PRACTICE DIRECTION 2014
The President of the Supreme Court of Appeal hereby issues the following Practice directions in respect of the Supreme Court of Appeal and replaces all previous practice directions.
1. Because of problems experienced in obtaining orders from registrars in High Courts, the Registrar will for the time being accept applications for leave to appeal or notices of appeal without the certified copy of the order as required by rule 6(2)(c) or 7(3)(c). Instead, a letter from the Registrar of the Court certifying the date of the order will be sufficient.
2. If any party to a pending appeal is of the view that it warrants preferent enrolment whether by reason of urgency or other good cause, such view must be conveyed immediately by letter to the Registrar for the attention of the President.
3 (a) Documents longer than ten pages lodged with the Registrar, including records of appeal, applications and heads of argument, must, in spite of the wording of the court rules, ordinarily be printed on both sides of the page.
(b) Where a party uses single-sided printing, it must by letter to the Registrar indicate the reason for this.
(c) Records containing double-sided printing must be bound in a way that permits both sides of each page to be fully legible.
(d) The record must be divided into separate conveniently-sized volumes of approximately 200 pages each.
4 The mode of address to the Bench in proceedings before this Court will no longer, in English, employ the expressions ‘My Lord’, My Lady’, ‘Your Lordship(s)’ or ‘Your Ladyship(s)’. Instead, the Bench will be addressed through the presiding Judge and be referred to as the ‘Court’. Where an individual member of the Bench is referred to this should be by using the Judge’s surname preceded by the word ‘Justice’. The current mode of address used in Afrikaans will continue to apply.
Dated at Bloemfontein on 15 November 2014.
SUPREME COURT OF APPEAL PRACTICE DIRECTION 2011
The President of the Supreme Court of Appeal hereby issues the following Practice directions in respect of the Supreme Court of Appeal and replaces all previous practice directions.
1 Because of problems experienced in obtaining orders from registrars in High Courts, the Registrar will for the time being accept applications for leave to appeal or notices of appeal without the certified copy of the order as required by rule 6(2)(c) or 7(3)(c). Instead, a letter from the Registrar of the Court certifying the date of the order will be sufficient.
2 If an application for leave to appeal is filed within 21 court days instead of within 21 ordinary days as required by s 21(2) of the Supreme Court Act 59 of 1959, it will for the time being not be necessary for the applicant to apply formally for condonation for the failure to comply with that provision.
3 If any party to a pending appeal is of the view that it warrants preferent enrolment whether by reason of urgency or other good cause, such view must be conveyed immediately by letter to the Registrar for the attention of the President.
4 (a) Documents longer than ten pages lodged with the Registrar, including records of appeal, applications and heads of argument, must, in spite of the wording of the court rules, ordinarily be printed on both sides of the page.
(b) Where a party uses single-sided printing, it must by letter to the Registrar indicate the reason for this.
(c) Records containing double-sided printing must be bound in a way that permits both sides of each page to be fully legible.
(d) This rule will be enforced as from 1 May 2011.
5 The mode of address to the Bench in proceedings before this Court will no longer, in English, employ the expressions ‘My Lord’, My Lady’, ‘Your Lordship(s)’ or ‘Your Ladyship(s)’. Instead, the Bench will be addressed through the presiding Judge and be referred to as the ‘Court’. Where an individual member of the Bench is referred to this should be by using the Judge’s surname preceded by the word ‘Justice’. The current mode of address used in Afrikaans will continue to apply.
Dated at Bloemfontein on 28 February 2011.
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