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On the 26 August 2016 the Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Bill, 2016 was gazetted.
This Bill seeks to amend the Zimbabwean High Court Act, the Magistrates Courts Act and the Small Claims Courts Act while amending section 47 of the High Court Act as well as inserting a new section in the Magistrate’s Court Act.
This will enable provision to be made by rules of court for ” ‘virtual sittings’ of the Court at which all or any of the parties to a civil suit may (by mutual agreement) participate in sittings of the Court by electronic means.”
Secondly, the Bill seeks to “enable rules to be made for such matters as the electronic service of process, the electronic authentication of court documents, and electronic access to records filed with the Registrar of the High Court” or with a clerk of court in the Magistrates court.
What are virtual sittings and electronic processes?
Virtual sittings consist of the judge(s) of the High Court or in matters heard at the Magistrates Court, magistrates, sitting in court or in chambers communicating with all parties.
The communication is “by the use of any electronic or other means of communication by which all the parties to the proceedings at the sitting can hear and be heard at the same time without being physically present together.”
The parties involved in the suit must consent to the hearing of the case by means of a virtual sitting. The Bill states that the High Court rules of court for virtual sittings apply only to civil proceedings and not criminal proceedings
The Bill does acknowledge the possibility that the Criminal Procedure and Evidence Act may under exceptional and specific circumstances, allow the use of virtual sittings in criminal hearings. In its current form, Criminal Procedure and Evidence Act does not make provision for virtual hearings.
In a bid to expedite court processes, the Bill seeks to allow for:
- the service of process for example summons and court applications by electronic means,
- the “authentication of documents by electronic means, whether executed inside or outside Zimbabwe”
- the “digitisation of the records filed or lodged with the Registrar and the conditions of access thereto or for the copying thereof for the purpose of any judicial proceedings”
These proposed amendments will apply equally to the High Court as well as the Magistrates Court.
Another relevant Bill is the Deeds Registries Amendment Bill which suffice to say, seeks to establish an electronic deeds registry as opposed to the current paper-based archive.
A welcome development with its own challenges
On paper, these amendments are progressive and Government’s intentions to utilise technology in the delivery of legal services are commendable.
However, we are yet to see if the Zimbabwean Government has the capacity and determination to provide the needed infrastructure and personnel skills needed to effect these plans.
The cheapest method to hold virtual sittings is currently conference calling via fixed telephone lines; it will be interesting to see whether other alternatives such as video calling or use of third-party applications such as Skype will be popular.
In relation to the service of process, it is uncertain whether Government will invest in the development of a dedicated online portal or whether the process will rely on e-mail systems.
Some challenges to this initiative will include the high cost of internet access which remains a barrier to most Zimbabweans, secondly, unreliable electricity supply may jeopardise hearings made via computers and other electricity-dependent devices.
Furthermore, it will be crucial to train court staff such as clerks of court in the use of computers as well as in the handling and archiving of electronic documents lodged with the courts.
Lastly, to promote the use of electronic documents Zimbabwe will need to draft complementary laws dealing with digital signatures so there is clarity as to what constitutes a signed electronic document.
Time will tell whether the online delivery of legal services in Zimbabwe is indeed feasible or just a pipe dream.
This article was written by Kuda Hove, a legal and information officer who has a keen focus on Zimbabwean ICT legislation.