Virus derails tycoon’s court proceedings

Open court sparks virus fears, virtual court can’t deal with documents

A wealthy Port Elizabeth businessman’s maintenance dispute with his estranged wife has been postponed because her elderly lead counsel and expert witnesses fear Covid-19 infection from an open court hearing — and voluminous trial documents make a virtual hearing impossible.

The trial provides insight into the difficulties of litigating during the pandemic.

The woman is suing her husband and various trustees of trusts linked to him and his business interests in the high court in Port Elizabeth.

Judge Mandela Makaula has now postponed the trial, finding that a virtual trial is not feasible and that the woman made a compelling case for a postponement.

He said the opening statements from counsel when the trial started a year ago were presented over three days.

The wife’s first witness, an accountant, gave evidence over eight days, drawing on two reports he had compiled totalling 304 pages with annexures, and 86 lever arch files of discovered documents.

The judge said during that testimony he was surrounded by files on the bench.

“I had to sit with a court official next to me throughout the proceedings because [I] was unable to identify the documents which were referred to,” he said.

The man and his wife separated in 2015 and divorce proceedings have been initiated, with another judge, Elna Revelas, describing the scale of litigation between the couple in a March 2019 judgment as reaching “extravagant proportions”.

Revelas noted the woman had engaged in a “prolific” quest for legal discovery of financial details, information and documents pertaining to the various trusts linked to her husband, a natural consequence of her claim for maintenance.

The stakes are high, however, with the judgment by Revelas revealing that the tycoon controlled some business entities with a value exceeding R1.28bn by February 2016.

The document discovery process appears to have resulted in the mass of documents that forms the basis of evidence in the current maintenance trial.

The trial started on August 5 2019 and was due to resume in the Port Elizabeth High Court last Wednesday, but Makaula granted the postponement.

The businessman and his wife agreed that Covid-19 provisions made it impossible at present to continue their maintenance fight in open court, but they disagreed on how the hearing should proceed.

Applying for a postponement until an open court hearing is possible, the woman her lead counsel was 78, and two expert witnesses she intended calling were both 69 and lived in different cities.

Two other expert witnesses also live elsewhere.

She told Makaula her lead counsel and the expert witnesses fell into a high-risk category in terms of the virus.

But she also submitted the voluminous information before the court made a virtual hearing impossible.

There were logistical issues and prohibitive costs associated with having the trial files available to all the witnesses in various venues, as well as updating the document bundles throughout the trial.

The inability to consult with witnesses during the day or after hours would result in intermittent postponements.

The tycoon and the other trustees wanted the court to get on with a virtual hearing, saying this had become the norm and that there was nothing exceptional about the trial.

They said a virtual hearing would be cost-effective, and the wife’s contention that it would be impossible to hold such a hearing was a gross exaggeration.

The husband wants to move on with his life and marry his new love interest.

The trustees offered R50,000 a day towards hiring a venue for the virtual hearing.

They did not deny the woman’s allegation that consultations with witnesses might result in lengthier intermittent postponements.