A pandemic that changed how we do life and business brought many challenges in all sectors, primarily how we work and conduct ourselves in the legal fraternity.

We moved from actual courtrooms to online ones, where everything can be done from the comfort of our homes.

With this came the convenience of witnesses not having to leave the comfort of their homes to submit testimony in online trials and arbitrations.

In this article, I question whether we genuinely derive justice with online testimony. Can we indeed derive credible online testimony?

There are many Pros and Cons to online testimony:

PROS

Saving Travel Fees: Witnesses save travel expenses by appearing online in the comfort of their homes. Saving Time: Witnesses need to log onto an online platform, such as TEAMS or Zoom, only when it is their time to testify and not have to wait all day in a court. Convenience: Having all witnesses be present in one forum from all over the world.

CONS

Insufficient Data and Tools: Witnesses not having adequate data or the correct tools (video cameras, laptops, cellphones) to provide testimony. Lag in Testimony: Witnesses or any party in an online forum having network issues and members of a forum dealing with lagging or buffering while testifying. Also note this can affect a legal representative’s ability to cross-examine a witness effectively. Witnesses Not Being Fully Present Online: A witness only showing a part of their face or not being able to see a witnesses hand’s on camera. The danger presents itself as a witness can be led through their testimony by any means, including instant messaging.

Before the Pandemic and the increase in online forums: The Criminal Procedure Act 51 of 1977 had made provision for witnesses to give testimony through the camera:

In section 158(2)(a) it states: A court may, subject to section 153, on its own initiative or on application by the public prosecutor, order that a witness or an accused, if the witness or accused consents thereto, may give evidence using closed circuit television or similar electronic media.

Furthermore, Section 138(1) of the Labour Relation Act2?also provides:

The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. 

This allows a commissioner to dispense with legal formalities and allow witnesses to testify online. This gives a commissioner the discretion to accept witness testimony with technical difficulties.

This raises many issues for attorneys when presenting their cases and needing to cross-examine a witness. Can we genuinely get credible witness testimony online?

Conclusion 

In conclusion, there will need to be a set of uniform rules to follow when presenting online evidence, and commissioners will need to consider the credibility of such testimony if witnesses cannot be adequately seen online.

Written by Kavita Kooverjee, SchoemanLaw