Judges and advocates put their heads together yesterday to address access to justice as SA courts move to virtual hearings at a time when many are struggling with unequal Internet access and high data costs.

‘How do you conduct an open court if everything is remote and you only have the participants (in the virtual hearing)?’ asked Judge Glenn Goosen, an acting justice in the SCA, during a panel discussion, notes a Daily Maverick report.

At the hybrid panel discussion, which had guests online and in person, hosted by the Hanns Seidel Foundation and UCT’s Democratic Governance and Rights Unit, Goosen asked: How do we ensure that we’re accountable and transparent when so many people are being excluded from what’s happening?

To address this challenge, the Eastern Cape High Court decided to record its sessions and post them on YouTube, said Goosen. The Constitutional Court also regularly posts its sessions on YouTube.

Alison Tilley, an attorney and co-ordinator of Judges Matter, reportedly told the DM that with courts being based on the notion of open justice, 'with them moving online, many people are left out in the cold'.

When you consider that there are thousands of courtrooms in South Africa, probably only a small percentage of them have their hearings on the Internet, said Tilley. During the hard lockdown, criminal and civil cases weren’t heard at all until lockdown regulations were eased around May, said Judge Roland Sutherland, acting Judge President of the Gauteng High Court.

For Sutherland, who’s based in Johannesburg, the move to online was smooth, but ‘there were some compromises because it meant that people can’t attend and this inhibited transparency’.

During a Q&A session, Professor Dawie de Villiers, from the University of Johannesburg law faculty, asked what happened in a case where applicants argued that by not allowing them to appear in court, their right to cross-examine was being infringed.

Whose decision would it be to decide whether the court is heard in person or online?

The DM report adds that Advocate Tererai Mafukidze pointed out that an advantage of moving online was that expert witnesses could now appear wherever they were based, instead of travelling to another city.

‘What I think will happen in the foreseeable future is that unopposed hearings will remain virtual, so will leave to appeals. But we need to ensure that everyone has adequate access to the Internet so that there are fewer disruptions (to virtual hearings),’ said Mafukidze.

Full Daily Maverick report