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[2013] ZAGPJHC 311
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Uramin Incorporated in British Columbia T/A Areva Resources Southern Africa v Perie (28154/2011) [2013] ZAGPJHC 311 (11 December 2013)
IN THE SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC OF
SOUTH AFRICA)
Case
number: 28154/2011
DATE:
11 DECEMBER 2013
In the matter
between:
URAMIN
INCORPORATED IN BRITISH COLUMBIA
trading as AREVA
RESOURCES SOUTHERN AFRICA
….....................................
Applicant
And
PERIE,
CAROLYN
...................................................................................................
Respondent
JUDGMENT
IN INTERLOCUTORY APPLICATION
Summary:
1. Interlocutory
application for evidence to be led by means of video link;
2. This court had to
evaluate on the one hand the claims of globalization of
economies, worldwide dispersal of potential
witnesses,
dissemination of communication throughout many jurisdictions and in
a multiplicity of formats, deployment of
employees and the
transitory nature of much employment and and o On the other hand,
there are the responses availed by expanding
and more easily
available technologies of which video conferencing is only one;
3. Plaintiff was a
South African based employee of a multinational whose former
employees were now based in Paris and Dubai who
were not available as
witnesses in Johannesburg by reason of the absence of any current
obligations to either party and their
commitments in Paris and
Dubai.
4. In a sense, the
grounds of this application reflects the participation of South
Africa in the greater world economies.
No longer is this country
a parochial backwater which is the pariah of the world; we no longer
employ only white South Africans
on an almost lifetime commitment
in local enterprises carrying out business almost exclusively
within our borders. This country
may be at the tip of the continent
of Africa but the economy is run by a multiplicity of nationalities
of all races and both genders;
the corporate sector is replete with
multinationals and South African entities trade throughout the
world ; personnel may
be employed on one continent, based on
another and carry out their duties on yet another; personnel
work on contract or
consultancy basis and seldom serve out a
lifetime’s career within the confines of one employer.
5. Evidence of
witnesses clearly essential to case of defendant and to a just
decision in the trial;
6. The technology of
the video link is now accepted both in other jurisdictions and South
Africa as an efficient and an effective
way of providing oral
evidence both in chief and in cross examination” and that this
is “simply another tool for securing
effective access to
justice”
7. The procedures
followed in hearing the evidence of the witness in Paris and the
witness in Dubai set out and difficulties noted.
SATCHWELL J
INTRODUCTION
1. This judgment
deals with one aspect of the continually developing response of
our courts to the marvels of modern technology.
Specifically, the
use of video link to procure the evidence of witnesses based in
Paris and Dubai who are not available or
willing to attend at the
court in Johannesburg.
2. This application
was made at the commencement of the trial. I gave my ruling
immediately after hearing argument in order that
the trial
proceedings would not be delayed and so that the appropriate
arrangements could be made for the hearing of the evidence
of the two
witnesses who were in different countries and in different time
zones. At the time I did not give the reasons for
my ruling.
3. Obviously, each
application for the use of video linkage procure the evidence of
witnesses who are not available to a
trial court must rely upon
its own particular facts and circumstances. I have heard a number
of such applications and heard
evidence in this manner in a number
of trials. My experience is that the approach of both South
African courts and courts
in other jurisdictions must continuously
try to be relevant to and keep pace with rapidly changing demands
placed upon judicial
practice. On the hand, there are the
claims of globalization of economies, worldwide dispersal of
potential witnesses,
dissemination of communication throughout
many jurisdictions and in a multiplicity of formats, deployment of
employees
and the transitory nature of much employment and so on.
On the other hand, there are the responses availed by expanding
and
more easily available technologies of which video conferencing is
only one.
4. In now handing
down this judgment, I have included reference to evidence as it
emerged at the trial. Obviously, I could
not have known all these
factors at the time of making my ruling but the knowledge which I
gained during the trial has confirmed
my confidence in the ruling
which I made at the commencement thereof.
5. Similarly, I
have here included comment on the video conferencing procedures as
they eventuated because I have been approached
by other judges for
information on this procedure and this may be of use to
practitioners.
BACKGROUND TO THE
EVIDENCE SOUGHT TO BE LED
1. Plaintiff was an
employee of the defendant who brings a claim for specific performance
based on contract alleged to be partly
written and party oral. She
avers that, when it employed her in December 2007, the defendant
verbally agreed to compensate her
for certain share options accruing
to her from her previous employers which she would forfeit upon
departure but that the defendant
failed to compensate her for the
loss of those benefits. The defendant disputes the claim averring
that the written contract of
employment is decisive of her claims and
has raised a special plea that plaintiff concluded a retrenchment
agreement in May
2011 which settled all claims which she now
makes against the defendant.
2. Plaintiff is
based in South Africa and was employed by the defendant in this
country. It is common cause that the defendant,
a multinational
and part of the Areva Group ( then 80% owned by the French
Government) was, at all material times, registered
in accordance
with the companies laws of the Republic of South Africa with place
of business and registered office in Johannesburg.
The agreement of
employment was concluded in South Africa. The litigation is
rightly conducted within the jurisdiction of
this court.
EVIDENCE SOUGHT
TO BE LED IS VITAL TO THE DEFENCE AND TO A FAIR OUTCOME
3. The Vice
President of Human Resources of the Mining Business Unit of Areva,
David Dragone (‘Dragone’), was,
throughout the
relevant time, based in Paris. Dragone was instrumental in the
process leading to the employment of plaintiff
with the defendant.
He was directly involved in negotiating the terms and conditions
of her employment.
4. Notwithstanding
the written document concluded between the defendant and the
plaintiff which purported to set out the ‘Basic
Terms and
Conditions’ of her employment, her claim for a sum ranging
from 230 000 (two hundred and thirty thousand)
and 340 000
(three hundred and forty thousand) Australian Dollars rests upon the
agreement which she claims was reached
between herself and Dragone
but not recorded in writing. At the trial, most of the evidence
revolved around that which plaintiff
averred was discussed between
herself and Dragone concerning compensation for the share options
which she would forfeit if
she departed from her then employer to
take up employment with the defendant. Her case rested upon their
verbal discussions,
emails exchanged between them and documents
which she had prepared and forwarded to Dragone.
5. Dragone is
clearly essential to the case of the defendant. He was the only
person from the defendant engaged in certain conversations
with the
plaintiff. He was the author of emails to the plaintiff, the
recipient of communications from her and party to certain
communications with the then Managing Director of the defendant
(‘Macpherson’) who made the offer of employment to
the
plaintiff and to whom she then reported but who is no longer
employed by the defendant.
6. At the time of
plaintiff’s retrenchment in 2011, the then Vice President
for Areva Mining Division for Southern Africa
was Enrico Barbaglia
(‘Barbaglia’). It was Barbaglia who signed the
settlement agreement upon her retrenchment
which document
specifically recorded that it “constitutes full and final
settlement of any claims whatsoever which either
party may have
arising ... out of the contract of employment” and that the
document “constitutes the entire agreement
between the
parties…”. It was plaintiff’s case at the trial
that she made certain insertions and deletions
to the document in
the presence of Barbaglia and that Barbaglia had assented to
these written amendments before the document
was signed by
plaintiff.
7. Barbaglia is the
only person whom the plaintiff alleges was made aware of her
amendments to the retrenchment agreement and
consented thereto.
8. I have no doubt
that, without the evidence of either of these witnesses, the
defendant would be severely handicapped in the
conduct of its defence
and, if necessary, its counterclaim.
9. There is no doubt
that the evidence of both Dragone and Barbaglia were vital to the
defendant in response to plaintiff’s
claims. At the trial it
was apparent that, if Dragone and Barbaglia did not give evidence,
the defendant would have to rely
only upon interpretation of the
two written documents and would be precluded from rebutting the
evidence of the plaintiff which
would then go unchallenged.
10. If the defendant
were precluded from leading the evidence of these essential
witnesses, I would have grave doubts about the
fairness of the
trial and of any judgment which I would hand down.
NON AVAILABILITY
OF WITNESSES
11. Neither Dragone
nor Barbaglia were, at the time of this trial, still in the
employ of the defendant or the Areva group
and neither were based
in South Africa. Neither are amenable to disruption of their
working and personal lives and neither
are subject to the control of
or the wishes of the defendant. Defendant’s attorney made
an affidavit explaining that
they were “no longer under the
supervision and control of the Areva Group”.
12. Interestingly,
neither Dragone nor Barbaglia made affidavits in support of this
application or setting out why they were
not available to be in the
court in Johannesburg. This was the subject of some discussion
at the hearing of the application.
I took the view that the
deponent to the affidavit is a senior attorney who had stated on
affidavit that she had consulted
with both Dragone and Barbaglia.
There was and is no reason to doubt her bona fides in any manner. I
any event, the contents
of her affidavit were confirmed by both
witnesses when we heard their evidence.
13. As far as
Dragone was concerned, it was stated in the attorney’s
affidavit that he no longer works for the Areva Group
and is now
employed by CGG, an oil exploration company, with its head office
situate in Paris. He advised the attorney that
he is in charge of
approximately 10,000 employees and is required to travel frequently
to different parts of the world. At the
time of the trial he was
commitment to work appointments in Paris. He “cannot come to
South Africa”.
14. Barbaglia is
currently living and working in Dubai. He advised the attorney that
“he cannot travel to South Africa
to give testimony in person
due to his work commitments”.
15. Both the
defendant and it’s attorney were clearly in a somewhat
difficult position. The assistance of former employees
was
required for this trial. But both Dragone and Barbaglia have
employment and personal obligations elsewhere. It can hardly
be
expected that either they or their current employers would be
enthusiastic about their taking time to consult with defendant’s
attorney and/ or counsel, making statements, deposing to affidavits
and (even less) travelling to South Africa.
16. Neither
potential witness can be subpoenaed to testify before this court in
Johannesburg.
17. In a sense,
the grounds of this application reflects the participation of South
Africa in the greater world economies.
No longer is this country
a parochial backwater which is the pariah of the world. We no
longer employ only white South
Africans on an almost lifetime
commitment in local enterprises carrying out business almost
exclusively within our borders.
This country may be at the tip of
the continent of Africa but the economy is run by a multiplicity of
nationalities of all races
and both genders. The corporate sector
is replete with multinationals and South African entities trade
throughout the world.
Personnel may be employed on one
continent, based on another and carry out their duties on yet
another. They work
on contract or consultancy basis and seldom
serve out a lifetime’s career within the confines of one
employer.
18. When I first
commenced the practice of law some thirty five years ago, it was a
notable feat to procure that a judge would
move from his (always
his) chambers or courtroom to hear the evidence of a witness
confined to bed in his own home by reason
of illhealth but which
home was still within the geographical jurisdiction of the court
1
.
It was an even greater feat to procure the evidence on commission of
a witness who refused to come and give evidence in South
Africa.
2
.
In such cases, the grounds were based upon the absolute
impossibility of procuring the attendance of the witness at court.
.
Today the situation is different. We are far more open to a
multiplicity of situations.
19. We rightly
expect and prefer that viva voce evidence in both civil and criminal
proceedings be given in a courtroom at the
seat of the court in the
presence of the parties and their representatives and the judicial
officer and the public
3
.
The reasoning is obvious. The court buildings and personnel and
the procedures therein are dedicated to the process of
litigation.
Anyone may attend. The legitimacy of the process derives, in part,
from this dedication.
20. Yet within these
stone walls staffed by personnel dressed as though they were
clerics in the reign of Henry the Eighth, we
have no difficulty in
recognizing the need for accommodating witnesses to meet the
interests of justice. We utilize many
different ways of
procuring evidence because both the Constitution and the High Court
Rules permit development of appropriate
procedures
4
We do so because we recognize that court procedures and the
Rules which regulate such practices are devised to administer
justice
and not hamper it
5
. Evidence is received on affidavit
6
;
closed circuit television regularly allows for evidence to be
given in one room and transmitted to a courtroom
7
; inspections in loco take place
8
and judges or nominated persons take evidence on commission
9
.
The test to be applied by the court in exercising its discretion
is whether or not “it is convenient or necessary
for the
purposes of justice”.
21. These exceptions
to the general rule are not limited to situations where the witness
is absolutely unavailable to attend at
court. We hear from child
witnesses who might be distressed if called to be physically present
in court; we receive affidavits
from various persons because of the
nature of their evidence and because this will reduce the time
expended thereon;
we go on inspections in loco because only
then will we comprehend what a witness has or will say; we have
commissions because
the court can travel while the witness cannot or
will not. We have regard to both “convenience” and “the
interests
of justice”.
22. In summary,
courts cannot be ignorant of the needs of the societies and
economies within which they operate. Legal procedures
must comport
to the exigencies of globalization and the availability of witnesses
as I have discussed above. Courts must adapt
to the requirements
of the modernities within which we operate and upon which we
adjudicate.
23. To the extent
that I have previously expressed the view
10
that it would be “an indulgence” to grant an
application to hear evidence through video conferencing, I would
restate
my view to be that I still consider that the norm should be
to hear witnesses in the courtroom but that relaxation of this
preference
should neither be considered extraordinary nor be
discouraged. I can envisage, though it was not an issue in the
present case,
situations where the costs of bringing a witness to
the courtroom would be prohibitive and that reasons of economy
alone might
well dictate evidence received outside a courtroom which
does not itself have video-conferencing facilities.
24. We do not
currently limit the use of various technologies only to the dire
and desperate situations where a witness cannot
be physically
present. We must accept that witnesses are here today and gone
tomorrow and that their employers, colleagues
, clients and
compatriots see nothing unusual in this. Courts must accommodate
this mobility or find ourselves increasingly out
of synch and
eventually irrelevant save for the most simple and parochial of
disputes.
25. I find that it
is sufficient reason that Dragone and Barbaglia are living and
working elsewhere, do not desire to travel to
South Africa, have no
obligation to either party by which they can be enticed so to do to
find that this court should consider
receiving evidence by video
link.
TECHNOLOGY TO BE
EMPLOYED
26. It has been
suggested that the form in which evidence is tendered is not
finite.
11
After all evidence was originally only received viva voce in
person and then accepted by way of affidavit and now is received
through video conferencing. No doubt other means will be
discovered in due course.
27. At the time that
the Rules of Court were first formulated, witnesses from beyond the
jurisdiction of the then Transvaal courts
travelled by train from
the coast and then by motorcar and then by aeroplane. They may even
have arrived at the coast after
week- long voyages by steamship
from another continent. Urgent messages arrived at this court by
way of telegrams whose contents
and authors were difficult to
authenticate.
28. Neither the
Rules of the High Court or the Civil Proceedings Evidence Act
expressly stated that more modern technologies
than pen and paper
or living, breathing persons are permitted in the High Court. The
legislation has not needed so to do. The
Constitution and the Rules
enjoin us to make the necessary developments on a case by case and
era by era basis.
29. This court does
not have WIFI throughout as may other courts in South Africa and
other jurisdictions; we do not yet have electronic
lodgment of
pleadings and documents in the office of the Registrar nor do we have
electronic archives; we do not have closed
circuit television in
every courtroom; we do not have any video conferencing facilities in
any conference room for holding case
management meetings or hearing
evidence. We intend to have these facilities. It is budgetary
constraints not opposition to
technological which is holding us
back.
30. It is now almost
trite that video conferencing “is an efficient and an
effective way of providing oral evidence both
in chief and in cross
examination” and that this is “simply another tool for
securing effective access to justice”
(see paragraph [10] of
the speech of Lord Carswell in Polanski v Conde Nast Publications
[2005] UKHL 10).
This process has been utilized in numerous South
African courts
12
31. Where video
conferencing has taken place witnesses have been viewed in person,
have been heard without intermediaries,
have been viewed at the
same time and in the same manner by all litigants and legal
representatives and the judicial officer.
The only barrier to
observation has been the exigencies of the electronic medium itself
where one or both of the audio or
the video may be problematic to
make out. In such case all parties are equally entitled to require
reconnection or repair
of the technology or repetition of the
evidence. The witnesses can be supervised in a number of ways.
They can be required
to present themselves to an agreed venue, may
be secluded from other persons, may be monitored by an officer of the
court of
the jurisdiction in which they are present, may not view
documentation without notification of the monitoring court officer.
32. In short, I
remain of the view (as previously expressed the Kidd v Van Heeren
judgment) that “”Our Rules of
Court did not initially
refer to anything other than pen and paper, they advanced to
encompass the concept of the typewriter then
the computer thereafter
the telefax and now email. Why video conferencing or other
technology should be excluded is beyond me”.
PROCEDURES
FOLLOWED IN THIS TRIAL
33. The court
reconvened in the offices of the defendant’s attorneys.
Proceedings were held in a conference chamber where
myself, my clerk,
counsel and attorneys for both plaintiff and defendant were present
as well as several technology boffins.
34. A large screen
was placed against the wall at the end of the conference table. All
of us in the room could see ourselves on
the screen for much of the
time. We could see the witness and the monitoring court officer in
both Paris and Dubai. The audio
component could be heard by everyone
in the room.
35. There were
problems with technology. Several times we lost he audio or the
visuals. One of the witnesses and his monitor changed
rooms to
improve the technological message.
36. Before any
evidence was heard I asked the person accompanying the potential
witness to identify himself or herself and surroundings.
In Paris,
Ms Marianne Kecsmar, an independent lawyer who is a member of both
the Paris and the New York Bars, was present
with Dragone in one of
the conference rooms of solicitors Linklaters. Sometimes an IT
assistant was present. In Dubai, Mr
Hamid Tayseer, a Jordanian
Legal Consultant in Dubai, was present in the offices of an
independent company in Dubai Internet City.
Legal representatives
were offered the opportunity to question both these supervisors or
monitors as to their status, independence
and understanding of
their duties.
37. I asked both
Kecsmar and Tayseer as to the procedures for giving evidence under
oath in their jurisdictions. Both indicated
an absence of any
particular format. Accordingly, I administered the oath to Dragone
and Barbaglia in accordance with South
African procedure.
38. Both Dragoen and
Barbaglia then were led through their evidence in chief and were
cross examined.
39. At conclusion of
their evidence I placed on record observations made by myself.
Firstly, there was considerable audio interference
prior to Dragone
taking the oath. This was resolved and when he did give evidence
there were no time delays or lapses in the
video/audio. Both the
verbal and visual evidence was clear. Secondly, the verbal
evidence of Barbaglia was less clear but where
there was lack of
clarity he was asked to repeat his evidence. There were occasions
where the whole of his face did not appear
on the screen – this
was by reason of the way he was sitting and he was asked to move
over. Thirdly, Dragone spoken quickly
and with an accent and I
sometimes missed out certain words but I did not ask him to repeat
himself because his meaning was clear.
The same problem did not
occur with Barbaglia. Plaintiff’s counsel recorded his
comments that the visual problems pertained
to a ‘frozen
screen’ and sometimes he missed out on contemporaneous visuals
with the audio.
40. The evidence was
recorded and has been transcribed. The discs are placed by me in
the court file.
CONCLUSION
41. I granted the
application for the evidence of Dragone and Barbaglia to be heard
through video conferencing.
42. I made no order
as to costs in respect of the opposed interlocutory application
because I believed this was an issue which
should be ventilated,
43. I ordered that
the costs of the video link was to be borne by the defendant. After
all these were their witnesses. Although
the plaintiff must have
known that any witnesses upon which the defendant might rely would
either have had to travel from
abroad or give evidence via video
link, I saw no reason why she should bear these costs merely
because she having obtained
employment in her own country with a
multinational whose former employees are dispersed throughout the
world.
Dated at
Johannesburg on this day the 9th of December 2013.
K.SATCHWELL
Counsel for
Plaintiff: Adv. N.J. Graves SC
Counsel for
Defendants: Adv F.A. Bhoda
Attorneys for
Plaintiff: Glyn Marais Incorporated
Attorneys for
Defendants: Webber Wentzel
Date of hearing:
4th November 2013
Date of Judgment:
11th December 2013
1
S
v Mayson , 1982, TPD no reported judgment.
2
See
for instance
,
S v ffrench-Beytagh 1971(4) SA
426 TPD.
3
High
Court Rule 38(2)
4
Section
173 of the Constitution conjoins the inherent power of the
courts to protect and regulate their own process with
the power to
develop the common law, taking into account the interests of
justice. Rule 39(20) provides that
a court is endowed
with a discretion to vary any of its procedures.
5
See
Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk 1972(1) SA 733 A at
6
High
Court Rule 38(2)
7
Section
158 of the Criminal Procedure Act.
8
See
High Court Rule 39(16).
9
High
Court Rule 38 (3) to (8)
10
See
Kidd
v Van Heeren 27973/98 W unreported judgment of 3 September
2013
11
See
S
v Ndhlovu and Others 2002(2) SACR 325 SCA at 340; S v
Van Der Sandt 1997(2) SACR 116 W at
132
.
12
See
S
v McLaggan CC70/2011 [2012]; S v Staggie &
antoher
[2002] JOL 10399
C; S v Grandhomme & another SS
18/97 C; Kidd v Van Heeren 2797/98 W.