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[2018] ZAKZDHC 39
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M.K v Transnet Ltd t/a Portnet (A105/2004) [2018] ZAKZDHC 39; [2018] 4 All SA 251 (KZD) (20 August 2018)
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IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: A105/2004
In
the matter between:
M
K
Applicant
and
TRANSNET
LTD t/a
PORTNET
Respondent
Admiralty
action
in personam
JUDGMENT
Delivered
on: 20 August 2018
Mbatha
J
Background
[1]
On or about 27 May 2001, the MSC Viviana, docked at the Durban Port,
in KwaZulu-Natal. On the morning of 27 May 2001 V K (‘the
deceased’) whilst being transported by the employee of the
respondent, the vehicle they were in, collided with a gantry crane
and then proceeded over the edge of the wharf side into the bay. This
accident led to the death of the deceased. As a consequence
of this
accident the applicant proceeded with an action for damages against
the respondent.
[2]
The basis of the applicant’s claim for damages was that the
deceased owed her a duty of support. As a result thereof,
the
applicant contends that she is entitled to the amount of US$1 000.00
per month, which the deceased provided to her. Had it
not been for
the accident, the deceased would have continued to provide for her at
the rate of US$1000.00 per month. As a result
of his death she has
suffered damages for loss of support in the total sum of
US$168 000.00. Furthermore, consequent upon
the contracts’
of employment concluded between the second plaintiff, the deceased
and one Brnovic, the second plaintiff was
obliged to pay and has paid
compensation in respect of the deceased, expenses incurred in Durban,
expenses incurred in Yugoslavia,
substitution expenses and
compensation to the next of kin of the deceased, a total amount of
US$64 044.00.
[3]
On 10 May 2010 the respondent conceded liability and the action was
settled to the extent of seventy percent of the applicant’s
proven or agreed damages. The only outstanding issue is the
determination of the quantum of damages in respect of the loss
suffered
by the applicant.
Applicant’s
Case
[4]
The outstanding issue in respect of the quantum for damages has led
to the present application that has come before this court.
The
application is to grant permission for the applicant to testify from
the premises of DAA Montenegro LLC in Yugoslavia, by way
of a video
conference link, availing to the respondent an opportunity to appoint
legal representatives to monitor and be present
during the process.
It entails that the applicant’s attorneys of record will
arrange for the video conference link to be
set up at the offices of
Shepstone and Wylie or any other place so agreed to by the court in
order for the presiding officer and
the legal representatives of the
respondent to be present during the process.
[5]
The founding affidavit to this application was deposed to by Andrew
Gavin Staude, the applicant’s attorney. The applicant
is
described as an adult female spinster, born on […] 1936, an
octogenarian. She is resident at […], Kotor Municipality,
State of Motenegro, in the former State of Yugoslavia. It is alleged
that she is the mother to the deceased, who was employed as
a second
engineer by the Mediterranean Shipping Company SA aboard the MV ‘MSC
Viviana’ at the time of his death.
[6]
The basis for the application is that due to old age, ill health and
impecunious state of the applicant, she is unable to attend
at a
court in South Africa. In support of her application two medical
practitioners have certified that she is not capable of long
distant
travel, i.e. by plane or otherwise and therefore unable to attend
trial in South Africa. Lastly, she is unable to afford
the cost of
travelling and accommodation for herself and a chaperone / caregiver
to Durban, South Africa, in order to testify.
[7]
The first medical certificate indicate that she is on treatment for
depression, suffers from prominent stressed anxiety, gnostic
(sic)
and brain potential which corresponds to her age. This diagnosis by
Dr Andrija Cetkovic states that she suffers from what
is termed
DEPRESIO RECIDIVA, GRADUS MODERATI. Dr Andrija Cetkovic concluded
that the applicant is not capable to undertake long
trips, should not
be exposed to any stress events like court hearings and trials, and
as a result she is unable to attend the trial
in South Africa. Dr
Edita Starovic’s conclusion also confirms that the applicant is
not capable to travel the distance by
plane or otherwise due to ill
health. Dr Edita Starovic’s, a Specialist Physician, prognosis
is that the applicant was diagnosed
with CARDIOMYOPATHIA CHR DECOMP,
HYPERTENSIO ART, BRONCHITIS CHR. The appellant’s counsel
contended that this was an admiralty
matter and that a proper case
has been made out for the relief sought.
Respondent’s
case
[8]
The respondent opposed the relief sought by the applicant on a number
of grounds. First, on the basis that the application is
not an
admiralty matter, that it does not fall within the parameters of the
Uniform Rules of Court and the applicant has not explicitly
stated
that this court has inherent power to regulate its own procedures.
Lastly, that the applicant has failed to make out a case
for the
relief sought.
[9]
The respondent’s counsel restated the provisions of rule 38(2)
of the Uniform Rules of Court, which require all witnesses
to be
examined
viva voce
and that it is only in certain
circumstances that the court may authorise, in terms of rule 38(3),
that the necessary evidence
be taken before a commissioner. It was
submitted that the applicant failed to set out such relevant factors
in her application
stating, the relevance of the evidence, the
admissibility of the evidence, the likelihood of the evidence being
lost, the inability
of the witness to attend, whether the evidence is
proposed by the respondent or the applicant, the opportunity for
cross-examination,
the expenses involved and the balance of
prejudice. The respondent’s counsel asserted that if the
applicant’s evidence
is crucial, though this was not asserted
by the applicant, the court will need to assess her credibility and
demeanour, which can
only be assessed if she gives
viva voce
evidence.
[10]
The respondent’s counsel asserted that these are fundamental
shortcomings of the application. Furthermore, no cogent
or reliable
evidence has been placed before the court on the integrity of such
technology and that the applicant is unable to attend
trial. It was
submitted that the allegations made by the applicant’s attorney
are hearsay evidence as no confirmatory affidavits
were filed by the
applicant and no reasons were given for such failure.
Admiralty
Jurisdiction
[11]
As to the challenge, whether the court can receive hearsay evidence
in this application, the applicant’s counsel, invoked
the
provisions of s 6(3) of the Admiralty Jurisdiction Regulation Act
[1]
(‘the Act’), which allows the applicant to tender hearsay
evidence. Section 6(3) provides as follows:
‘
A
court may in the exercise of its admiralty jurisdiction receive as
evidence statements which would otherwise be inadmissible as
being in
the nature of hearsay evidence, subject to such directions and
conditions as the court thinks fit.’
The
applicant contended that the action instituted by the applicant is an
admiralty action, as defined in section 1of the Act which
reads as
follows:
‘
proceedings
in terms of this Act for the enforcement of a maritime claim whether
such proceedings are by way of action or by way
of any other
competent procedure, and includes any ancillary or procedural
measure, whether by way of application or otherwise,
in connection
with any such proceedings.’
It
was therefore incumbent upon the applicant to prove to this court
that the applicant’s action was a maritime claim, which
falls
under the admiralty jurisdiction of this court which would entitle it
to invoke the provision of s 6(3) of the Act.
[12]
The judgment in
The
Wave Dancer: Nel v Toron Screen Corporation (Pty) Ltd and another
[2]
confirmed that if the question of jurisdiction was raised in the
proceedings before a Local or Provincial Division of the High
Court,
such court has to determine the issue. This is in line with the
provisions of s 7(2) and 7(4) of the Act. The peremptory
provisions
of s 7(2) become applicable only once the court decides that it is a
maritime claim.
[13]
The judgment of Binns-Ward J in
Jacobs
v Blue Water and others,
[3]
also confirms that the question lies on the characterization of the
claim as it appears in the pleadings. In that regard the provisions
of s 7(2) which, deal with proceedings before a provincial or local
decision in the high court, requires that when in any proceedings
the
question arises as to whether a matter pending or proceedings before
that court is one relating to a maritime claim, the court
should
forthwith decide that question. Section 7(2) provides as follows:
‘
(2)
When in any proceedings before a provincial or local division,
including a circuit local division, of the Supreme Court of South
Africa the question arises as to whether a matter pending or
proceeding before that court is one relating to a maritime claim,
the
court shall forthwith decide that question, and if the court decides
that-
(a)
the matter is one relating to a maritime claim, it shall be
proceeded with in a court competent to exercise its admiralty
jurisdiction,
and any property attached to found jurisdiction shall
be deemed to have been attached in terms of this Act;
(b)
the matter is not one relating to a maritime claim, the action
shall proceed in the division having jurisdiction in respect of the
matter: Provided that if jurisdiction was conferred by the attachment
of property by a person other than an
incola
of the court, the
court may order the action to proceed as if the property had been
attached by an
incola
, or may make such other order, including
an order dismissing the action for want of jurisdiction, as to it
appears just.’
[14]
The plaintiff relies on s 1(1) which defines a maritime claim as:
‘
any
claim for, arising out of or relating to
…
(f)
loss of life or personal injury caused by a ship or any defect in a
ship or occurring in connection with the employment of a ship.’
And
or s 1(1)
(s)
:
‘
the
employment of any master, officer or seaman of a ship in connection
with or in relation to a ship, including the remuneration
of any such
person, and contributions in respect of any such person to any
pension fund, provident fund, medical aid fund, benefit
fund, similar
fund, association or institution in relation to or for the benefit of
any master, officer or seaman.’
And
s 1(1)
(ee)
and
(ff)
:
‘
(ee)
any other matter which by virtue of its nature or subject matter is a
marine or maritime matter, the meaning of the expression
marine or
maritime matter not being limited by reason of the matters set forth
in the preceding paragraphs; and
(ff)
any contribution, indemnity or damages with regard to or arising out
of any claim in respect of any matter mentioned above or any
matter
ancillary thereto, including the attachment of property to found or
confirm jurisdiction, the giving or release of any security,
and the
payment of interest.’
[15]
The deceased died as a result of an accident which occurred in
connection with the employment of a ship, (s (1)
(f)
), the
employment of the deceased as an officer or seaman of a ship (s
1(1)
(s)
) and falls within the all-embracing provisions of s
(1)(1)
(f)
, s (1)(1)
(s)
, s 1(1)
(ee)
and
(ff)
.
The proceedings before this court are also in line with the
provisions of s 3(1) and (2) of the Act, which state as follows:
‘
(1)
Subject to the provisions of this Act any maritime claim may be
enforced by an action
in personam
.
(2)
An action
in personam
may only be instituted against a person-
(a)
resident or carrying on business at any place in the Republic.’
I
accept therefore that the claim to admiralty jurisdiction of this
court is fully substantiated, as it falls within the definition
of a
maritime claim as pleaded by the plaintiff and the respondent carries
on business within the jurisdiction of this court. I
therefore find
that the application can be entertained in line with the provisions
of s 6(3) of the Act although there is no confirmatory
affidavit by
the applicant. Having found that this court has jurisdiction to hear
the matter in terms of the Act, the application
to strike out by the
respondent is dismissed and the application deposed to by the
applicant is ruled to be admissible before this
court.
The
video link conference application
[16]
I now proceed to consider the application by the applicant to adduce
oral evidence by way of video link conference. In general,
in civil
proceedings oral testimony is given by the plaintiff in a court of
law. Giving evidence through video link and other social
media
mechanisms is a novelty in South Africa, save to a very limited
extent in the criminal courts. Technology is at this stage
of our
lives so advanced to a point that direct evidence can be taken from a
witness in another country and cross-examination can
take place
whilst the witness is visible to all. The Electronic Communications
and Transactions Act
[4]
(the
ECTA) which forms part of our legislation regulates the use of
electronic communications, with the exception of video link
communications. The learned authors, Zeffert and Paizes, in
The
South African Law of Evidence
[5]
have this to say with regard to the evidence in general:
‘
The
test is essentially a practical one. The court should consider all
material which may help it reach a proper conclusion. But
the value
of some evidence is outweighed by the problems it creates. Balancing
the competing considerations is, within the limits
of fairly wide
principles, a matter for a discretion of the judicial officer.’
I
am of the opinion that the aforementioned test should apply to
applications of a similar nature to the one referred to above.
[17]
Our laws do not cater for all the instances where the applicant
cannot give oral evidence in court. The Civil Proceedings Act
25 of
1965 provides in s 24 for Depositions of Witnesses to be taken on a
commission. Rule 38 of the Uniform Rules of Court provides
for
various procedures to produce evidence for trial. It also provides
for the manner in which evidence will be adduced at trial.
Rule 38(3)
provides for taking of evidence of a witness before or during the
trial before a commissioner of the court; rule
38(5) provides
that unless the court directs such examination to be by
interrogations and cross interrogations, the evidence of
any witness
to be examined before the commissioner in terms of an order granted
under subrule (3) shall be adduced upon oral examination
in the
presence of the parties, their advocates and attorneys, and the
witness concerned shall be subject to cross-examination
and
re-examination.
[18]
The granting of orders as regulated in rule 38 are within the
discretion of the court, a discretion which is exercised judicially.
The main consideration being whether if evidence is placed before the
court in this manner; justice is likely to be done. The applicant
has
to depose to an affidavit, give reasons why it is necessary for the
purposes of justice to depart from the norm; the nature
of the
evidence to be given; names of witnesses and if it is convenient and
necessary for the purposes of justice. This is a jurisdictional
factor: ‘A party seeking to dispense with a personal appearance
of a witness must show that it is “necessary for the
purposes
of justice that the ordinary way of taking evidence should be
departed from”’.
[6]
The convenience must not only be for the applicant but also for the
respondent and the court.
[7]
[19]
Though this is not an application for a commission
de
bene esse
,
the guidelines given in the various judgments relating to the taking
of the evidence in the commission have been considered by
this court
for purposes of whether it is necessary, convenient and in the
interests of justice to grant relief sought by the applicant.
I have
considered whether it has been demonstrated that evidence sought to
be adduced on video link is relevant to the issues in
dispute. The
applicant has to adduce evidence as to the relationship between
herself and the deceased and if such relationship
translated to a
duty of support.
[8]
The
applicant, as the plaintiff in the main case, bears the onus to prove
her claim for damages. In that regard I find her evidence
to be
relevant. However, I have to consider if there will be any undue
prejudice to the other party in the presentation of the
evidence in
this format. The applicant’s counsel submitted that there will
be no prejudice to the defendant as the plaintiff
will be visible to
all, she can be cross-examined and can give evidence under
supervision of the attorney elected by any of the
parties. It has
been shown that the nature of the evidence to be adduced by the
applicant is material to the real issues in the
litigation and likely
to contribute appreciably to their determination
[9]
And it has not been admitted by the respondent that she is the mother
of the deceased and she is the main witness in that regard.
[20]
I have also considered whether the court will be in a position to
observe the demeanour, personality and conduct of the applicant
and
whether there will be an opportunity for cross-examination if the
evidence is tendered through video link in a locality which
lawyers
cannot reach.
[10]
In
consideration thereof I have applied my mind as to whether there are
other methods of obtaining evidence and the capacity of
the parties
to bear the expense involved and I have weighed the prejudice to the
party seeking the application, if the application
is refused, as
against the prejudice to the respondent if it is granted.
[21]
I have considered whether there is a likelihood that evidence can be
lost, whether the applicant who is outside the jurisdiction
of this
court is likely to die.
[11]
When I weighed a number of factors, including old age, serious
illness and costs of travelling and other incidental costs, it is
clear to me that she will not be in a position to give oral testimony
in this court due to her advanced age and serious illness.
[12]
[22]
The high court has powers to regulate its own processes in the
interests of justice besides the powers bestowed upon it in
terms of
the statute. That power is now enshrined in s 173 of the
Constitution, which provides, as follows:
‘
Section
173
The Constitutional Court, Supreme Court of Appeal and High
Court of South Africa each has the inherent power to protect and
regulate
their own process, and to develop the common law, taking
into account the interests of justice.’
This
court has taken into account the dictum in
Moulded
Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and
another
[13]
,
where the court expressed itself as follows:
‘
I
would sound a word of caution generally in regard to the exercise of
the Court's inherent power to regulate procedure. Obviously,
I think,
such inherent power will not be exercised as a matter of course. The
Rules are there to regulate the practice and procedure
of the Court
in general terms and strong grounds would have to be advanced, in my
view, to persuade the Court to act outside the
powers provided for
specifically in the Rules. Its inherent power, in other words, is
something that will be exercised sparingly.
As has been said in
the cases quoted earlier, I think that the Court will exercise an
inherent jurisdiction whenever justice requires
that it should do so.
I shall not attempt a definition of the concept of justice in this
context. I shall simply say that, as I
see the position, the Court
will only come to the assistance of an applicant outside the
provisions of the Rules when the Court
can be satisfied that
justice cannot be properly done unless relief is granted to the
applicant.’
[23]
In
Mukaddam
v Pioneer Foods (Pty) Ltd & others and Pioneer Foods (Pty) Ltd &
others
[14]
in endorsing the provisions of s 173 of the Constitution the
Constitutional Court pronounced as follows:
‘
It
is apparent from the text of the section that it does not only
recognise the courts’ powers to protect and regulate their
own
processes but also their power to develop the common law where
necessary to meet the interests of justice.
The guiding principle
in exercising the powers in the section is the interests of justice’.
And
in
Oosthuizen
v Road Accident Fund
[15]
stated as follows with regards to s 173:
‘
Jerold
Taitz succinctly describes the inherent jurisdiction of the high
court as follows in his book
The Inherent Jurisdiction of the
Supreme Court
(1985) pp 8-9:
“
.
. .This latter jurisdiction should be seen as those (unwritten)
powers, ancillary to its common law and statutory powers, without
which the court would be unable to act in accordance with justice and
good reason. The inherent powers of the court are quite separate
and
distinct from its common law and its statutory powers, eg in the
exercise of its inherent jurisdiction the Court may regulate
its own
procedure independently of the Rules of Court.‟’
[24]
This default position can be exercised to ensure convenience and
fairness in legal proceedings, whenever the court considers
it to be
just and equitable in the circumstances. The high court does not have
any rules that regulate the applications for hearing
of evidence
through video link conferences. It would be absurd that having found
that this court has jurisdiction to deal with
the matter but because
the rules of this court do not provide for a mechanism to deal with
this application, that it should be
rejected. South Africa prides
itself in the rights enshrined in the Constitution. One of those
paramount rights being s 34 of the
Constitution which provides that
‘
Everyone
has a right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial forum.’
I
find that the absence of such rules should not prevent this court
from considering the application. The hearing with the
aid of a
video link conference will be a public hearing in a court of law,
where all the parties will be appearing before a judge
seized with
the matter. I cannot see why such evidence cannot be admissible in
any court of law.
[25]
It is my view that the applicant has made out a case for the relief
sought. The video link conference will also ensure access
to the
courts in terms of s 34 of the Constitution for the applicant and
courts have a duty to ensure that people who have physical,
financial, health and age barriers like the applicant have access to
justice. The legal barriers created by the lack of rules,
cannot
override the right to access to justice. Video link conferencing
extends and expands access to justice. Technology with
the necessary
safeguards enhances such a right enshrined in the Constitution.
[26]
South African Criminal Courts have received evidence electronically
when children give evidence through the closed circuit
camera
television system. This is done mostly where the victim is vulnerable
or young in sexual offences cases. The applicant is
no longer
physically fit to travel at her age, suffers from serious ill-health
and it will be very expensive for her to travel
to South Africa. This
is a cost effective measure, which is also convenient to all and can
be used in civil proceedings.
[27]
The court in
Uranium
(Incorporated in British Columbia) t/a Areva Resource Southern Africa
v Perie
,
[16]
Satchwell J authorised the of a video link to procure evidence of
witnesses who were in Dubai and Paris for business and were not
able
to attend court in Gauteng. Similarly in
Folley
v Pick ‘n Pay Retailers (Pty) Ltd and others,
[17]
Boqwana J found compelling reasons that the principal witnesses’
evidence be procured through the employment of video link
conference.
Both Judges found that the use of video linkage to be appropriate in
the circumstances and recognised that South African
courts should use
modern technology where the witness cannot attend court in the
interests of justice.
[28]
The right to have a person give
viva voce
evidence is not
absolute. Rights of all the parties need to be considered, as long as
there will be no prejudice to the other party
as provided in s 36(1)
of the Bill of Rights, which provides that the ‘limitation
[must] be reasonable and justifiable in
an open and democratic
society based on a human dignity, equality… .’
[29]
South African courts’ are lagging behind in this sphere of
technology. I have referred to the Electronic Communications
and
Transactions Act, and the Electronic Communications Act,
[18]
as they are more or less related to the video link subject. Rule
38(3) of the Uniform Rules of Court still provides for taking
of
evidence on commission whether the witness is in South Africa or
abroad. The disadvantages of the commission are that it cannot
compel
a witness to give evidence, the commissioner merely examines the
witness, and he has no powers to decide on the issues of
admissibility of evidence. Video conferencing is a live transmission
of a communication between two or more persons, from various
locations. The conferencing take place before the court, and the
witness can be observed, can be requested to clarify answers and
examined at the same time.
Definition
of the high court in video conference link matters
[30]
The high court in terms of s 1 of the Superior Courts Act
[19]
means the high court of South Africa as referred to in s 6(1).
Section 6(1) refers to the various divisions of the high courts,
presided over by judges appointed to serve in those divisions.
Section 6(7) of the Superior Courts Act, provides that
‘
Whenever
it appears to the Judge President of a Division that it is expedient
or in the interests of justice to hold a sitting for
the hearing of
any matter at a place elsewhere than at the seat or a local seat of
the Division, he or she may, after consultation
with the Minister,
hold such sitting at that place.’
[31]
The sitting of a court in another place other than the designated
areas in terms of the Act, do not cater for circumstances
where the
court has to sit as a court, at a venue with video conference
facilities, like an attorney’s office. It is my view
that since
such a sitting will be presided over by a judge of the high court,
the definition of the court should be extended to
cater for such a
situation. Courts hold inspections
in loco
, similarly, the
place where a video conference will take place should be regarded as
a court.
Applications
for video link conferencing in foreign jurisdictions
[32]
I wish to adopt the view taken by the English Court in the civil
matter of
Bremer
Vulkan Schiffbau and Maschinenfabrik v South India Corpn
,
[20]
the court described the courts’ inherent jurisdiction to hear
any matter before it, as a general power to control its own
procedures so as to prevent an injustice. It has to be used to ensure
convenience and fairness in legal proceedings, prevent steps
being
taken that would render judicial proceedings ineffective, prevent
abuses of process and act in aid of superior courts and
in aid or
control of inferior courts and tribunals.
[21]
Plasket J in
S
v Tsotsi
[22]
held that wherever the inherent jurisdiction of the court is in
issue, the court has a discretion whether or not to invoke same.
I
therefore find that even if it has not been expressly relied upon by
the applicant, this court has a discretion whether to invoke
its
inherent jurisdiction or not.
[33]
Video conferencing in Australia is regulated in terms of the Federal
Court of Australia Act 1976. The United States Federal
Courts also
use video link conferences. What is common to Australian and American
courts is that leave to proceed by video conference
is sought from
the presiding judicial officer and certain safe guards have to be put
in place in line with the provisions of the
rules that govern such
applications. Our courts will soon need to be equipped with such
facilities and develop the legal framework
for the use of such
technology. The Australian courts are quite advanced as the Chief
Justice of the High Court, announced as early
as, 15 September 1987
that applications for special leave to appeal in civil matters were
soon to be heard by video link. This
appears in an article by Daryl
R. Williams accessed 23 July 2018; ‘Use of video recordings and
video links by courts and
tribunals’.
[23]
The article refers to benefits of video link evidence, which is used
in personal injury actions and other civil proceedings in
Australia.
[34]
The United Kingdom’s Courts have also recognised the use of
such facilities in civil proceedings in the courts. In an
article
written by Chun Wong, dated 21 October 2017,
[24]
she refers to Annex 3 of Practice Directive (PD) 32 which sets out
guidance for the use of video link (known as VCT), according
to which
the discretion should be exercised by the court. She discusses
Barratt
v Shaw & Ashton
[25]
judgment and state as follows:
‘
A
judgment must be made in every case in which the use of VCT is being
considered not only as to whether it will achieve an overall
costs
saving but as to whether its use will be likely to be beneficial to
the efficient, fair and economic disposal of the litigation.’
[26]
Chun
Wong in her article sets out that the supporting witness statement
should cover; (a) why a witness cannot attend in person
(e.g. they
live aboard, illness which prevents travel to court etc.); (b) why
the witnesses’ evidence is crucial to the case
and any
prejudice likely to be suffered by either parties; and (c) any other
circumstances (eg short notice of a change of a trial
date). These
are the basic requirements which have been covered by the applicant
in her application. Chun Wong further advocates
that if the court
does not have suitable alternative premises for such purposes, they
will need to be sourced.
[35]
She then lists a number of cases showcasing the courts’
approach to evidence through video link, including
Kimathi
v Foreign & Commonwealth Office
.
[27]
In that matter the claimants who could not come to England for health
reasons, were granted permission for their evidence to be
given by
video link. In the matter of
Falmouth
House Limited v Micha’al Kamee Abou-Hamden
,
[28]
the court refused the application by the defendant who was resident
in the United Arab Emirates for permission to give evidence
by video
link on the basis that this would contravene a previous order for
attendance ‘in person’, and also given the
delays in
making the application. In
Polanski
v Conde Nast Publications Limited
,
[29]
the House of Lords allowed that evidence be led through video link
conference, where the applicant faced the risk of being extradited
to
the United Stated, to be sentenced for a criminal conviction, if he
set foot in the United Kingdom. The House of Lords found
that no
prejudice would be suffered by the defendant if evidence was given by
video link. Her view, which I accept, is that the
court needs to
achieve a balance between the convenience of giving evidence against
the control that a court requires over conduct
of the evidence.
[36]
South Africa requires a legal framework for video link conferences,
as it is the case in foreign jurisdictions within the Commonwealth.
In an article dated 26 April 2016 by Dr Izette Knoetze, ‘Virtual
Evidence in Courts – A concept, to be considered in
South
Africa’,
[30]
she echoes
my sentiments, where she states that ‘The use of technology in
litigation requires that the laws of evidence recognise
and provide
for the various methods of taking and presenting evidence remotely.’
She goes on to say that so far, in South
Africa, it is only
s
158(2)
(a)
of the
Criminal Procedure Act 51 of 1977
which caters for an
exception that evidence must be given in the presence of the accused.
I see no reason why specific rules have
not been developed for civil
proceedings, to cater for exceptional circumstances, like in this
case. We are still left with the
antiquated commission rules.
[37]
A recent Canadian Superior Court decision noted in an article by Matt
Maurer, titled ‘When are witnesses Allowed to Testify
via
Video-Conference?’ dated 8 September 2015,
[31]
discusses
Rule 1.08(1)
of the Rules of Civil Procedure which permits
trial evidence by telephone or video conference. This rule states
that if the parties
do not consent to a witness giving evidence by
telephone or video conference, then it is open to the court on motion
or
mero
motu
to make an order directing a telephone or video conference on such
terms as are just. The article sets out the factors to be considered
in exercising this discretion are set out in
Rule 1.08(5)
and are as
follows:
‘
(a)
The general principle that evidence and argument should be presented
orally in open court;
(b)
The importance of the evidence to the determination of the issues in
the case;
(c)
The effect of the telephone or video conference on the court’s
ability to make findings, including determinations about
the
credibility of witnesses;
(d)
The importance in the circumstances of the case of observing the
demeanour of a witness;
(e)
Whether a party, witness or lawyer for a party is unable to attend
because of infirmity, illness or any other reason;
(f)
The balance of convenience between the party wishing the telephone or
video conference and the party or parties opposing; and
(g)
Any other relevant matter.’
He
refers to the matter of
Chandra
v Canadian Broadcasting Corporation and others
[32]
where the court dealt with
Rule 1.08(1)
of the Rules of Civil
Procedure, R.R.O, 1990
regulation 194
which permits trial evidence by
telephone or video conferencing, where facilities are available at
the court or are provided by
a party.
[38]
I am impressed by the open-mindedness shown by the Canadian
Legislature as quoted in the
Chandra
judgment, in particular
rule 1.04
which provides that:
[33]
‘
(1)
These rules shall be liberally construed to secure the just, most
expeditious and least expensive determination of every civil
proceeding on its merits.
(1.1)
In applying these rules, the court shall make orders and give
directions that are proportionate to the importance and complexity
of
the issues, and to the amounts involved, in the proceeding.’
The
court noted the positive effects of receiving evidence by video
conferencing, referring to the proceedings as ‘an electronic
trial’. It noted that the picture and sound quality were
excellent, mostly that the experience was entirely satisfactory.
The
learned judge found that the fears experienced by the plaintiff in
opposing the CBC motion were, in his view, entirely unfounded.
[34]
I hold a more liberal and progressive opinion that such applications
can be taken by consent between the parties. I finally find
that the
challenges raised by the respondent have no merit as such technology
is extensively used in various countries.
[39]
I therefore find that the application should succeed. Accordingly,
the following order is made:
1.
The applicant is authorised and directed to adduce her evidence, as
plaintiff, in High Court case number 105/2004 (KwaZulu-Natal
Local
Division) by way of video link on a date arranged by the parties and
the registrar of the Court in 2018, furthermore:
1.1
The applicant will give evidence at the premises of DAA Montenegro
LLC, situated at […], Podgorica, Montenegro;
1.2
The respondent is entitled and authorised to have a legal
representative present when the applicant gives evidence at the
premises
of DAA Montenegro LLC, situated at […], Podgorica,
Montenegro;
1.3
The applicant’s evidence will be transmitted via video
conference link to the premises of Shepstone & Wylie or any
other
place agreed upon by the parties herein;
1.4
The respondent will be entitled and authorised to have legal
representatives in attendance at all material stages;
1.5
The applicant shall ensure that a bundle of documents, agreed to by
the respondent shall be delivered to the premises of DAA
Montenegro
LLC, situated at […], Podgorica, Montenegro for use by
the applicant in giving of her evidence;
2.
The respondent is directed to pay the costs of this application.
3.
This matter shall be given preference by the court.
___________________
MBATHA
J
Date
of hearing: 14 June 2018 – C Court (Durban)
Delivered
on: 20 August 2018
Appearances
For
the Applicant: I Veerasamy
Instructed
by: Berkowitz Cohen Wartski
16th
Floor, Southern Life Building
88
Joe Slovo Street
Durban
For
the Defendant: VI Gajoo SC
Z
Qono-Reddy
Instructed
by: J Surju Attorneys
5
Murray Court
375
Anton Lembede Street
Durban
[1]
Act 105 of 1983.
[2]
1996 (4) SA 1167 (A).
[3]
[2016] ZAWCHC 17.
[4]
Act 25 of 2002.
[5]
DT Zeffert and AP Paizes
The
South African Law of Evidence
3ed (2017) 251.
[6]
AC CIlliers, C Loots and HC Nel
Herbstein
and Van Winsen: Civil Practice of the High Courts and the Supreme
Court of South Africa
5ed (2009) ch33-859;
Hills
v Hills (II)
1933 NPD 293
at 294.
[7]
Myerson
v Health Beverages (Pty) Ltd
1989
(4) SA 667
(C) at 675J-676A.
[8]
Fernandes
v
Fittinghoff
& Fihrer CC
1993
(2) SA 704
(W) at 708 – 709.
[9]
S
v Mzinyathi
1982 (4) SA 118
(T);
Meyerson
v Health Beverages (Pty) Ltd supra
at 678A and DE van Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
(Revision Service – 2017) at D1-512.
[10]
S
v Hassim and others
1972 (2) SA 448
(N) at 450E-G.
[11]
Botha
v Van der Vyver and others
(1908) 25 SC 760.
[12]
Gray
v Gray
1923 OPD 111
;
Erasmus
supra
(Original Service – 2015) at D1-514.
[13]
1979 (2) SA 457
(W) at 462H-463B
[14]
[2013] ZACC 23
;
2013 (5) SA 89
(CC) para 34.
[15]
[2011] ZASCA 118
para 14.
[16]
2017 (1) SA 236 (GJ).
[17]
[2017]
ZAWCHC 86.
[18]
Act 36 of 2005.
[19]
Act 10 of 2013.
[20]
[1981] 1 All ER 289.
[21]
Bremer
Vulkan Schiffbau supra
at 295.
[22]
2004 (2) SACR 273
(E) para 13.
[23]
(1987) 17
Western
Australian Law Review
257 at 261ffg available at
http://classic.austlii.edu.au/au/journals/UWALawRw/1987/11.pdf;
accessed 23 July 2018.
[24]
Chun Wong, The use of video lin in civil proceedings (21 October
2017), available at
http://disputeresolutionblog.practicallaw.com/the-use-of-video-link-in-civil-proceedings/;
accessed on 23 July 2018
[25]
[2001] EWCA Civ 137, [2001] CP Rep 57.
[26]
Article 2 of Annex 3: Video Conferencing, Practice Directive 32 –
Evidence: This practice direction supplements CPR Part
32.
[27]
[2016] EWHC 600 (QB).
[28]
[2017] EWHC 779 (Ch).
[29]
[2005] WLR 637
,
[2005] UKHL 10
,
[2005] 1 All ER 945
,
[2005] 1 WLR
637
,
[2005] EMLR 287
[30]
This article was first published in
De
Rebus
in
2016 (Oct)
DR
30;
available at
http://www.derebus.org.za/virtual-evidence-courts-concept-considered-south-africa/;
accessed 23 July
2018.
[31]
Available at
http://www.slaw.ca/2015/09/08/when-are-witnesses-allowed-to-testify-via-videoconference/;
accessed 23 July 2018.
[32]
2015 ONSC 5385
, a judgment by the superior court of Court of
Justice and available on the CanLii database. .
[33]
Chandra
supra
para 7.
[34]
Chandra
supra
paras 30 – 31.