JSC urged to embrace virtual hearings during COVID-19 era

HUMAN rights lawyers have urged the Judicial Service Commission (JSC) to facilitate virtual hearings to avert the spread of COVID-19 in courtrooms. In a letter to Justice Malaba and Judge president George Chiweshe, the lawyers said they had a direct and substantial interest in ensuring that members of the public had access to justice that should be delivered in an effective and timeous manner.

“The numerous and diverse challenges presented by the pandemic are novel, they have demanded that human beings constantly find innovative ways to continue to function despite the scourge,” part of the letter by the Zimbabwe Lawyers for Human Rights, dated February 4, read.

“These have included the use of digital and electronic tools to perform. This requires that justice is effectively and promptly delivered notwithstanding the pandemic.

“We are most concerned that virtual sitting of courts has not been instituted as a means to avert some of the challenges presented by the pandemic, we respectfully believe that by now practice directions should have been issued to facilitate virtual sittings.”

Due to the COVID-19 lockdown, Justice Malaba, through Practice Direction number 2 of 2021, has suspended most court proceedings, except urgent matters.

New cases will not be heard until the lockdown is over.

But ZLHR director Roselyn Hanzi said court rules should be enacted to facilitate virtual sittings.

She argued that the Chief Justice should, therefore, initiate and pass directives and legislation to deal with the impact of the COVID-19 pandemic in the courts as a matter of urgency.

Hanzi said it was critical that the public should be able to access justice through the use of virtual courts during the COVID-19 pandemic.

“It is obvious that the physical access to courts and clients is difficult for legal practitioners, litigants, witnesses and judicial officers during the pandemic. The service and issuance of process is a challenge. No electronic filing facilities exist outside the Commercial Courts, overcrowding at police cells and prisons facilities has occurred and this has broader impact on the public health,” she said.

Hanzi argued that Practice Direction number 2 of 2021 worsens the situation in that it limits the rights of litigants to present their arguments in writing, except bail cases, and in all cases the right to present oral arguments to advance their cases.

“This is a fundamental limitation on the rights of litigants in an adversarial system,” she said.

“Virtual hearings could easily deal with this challenge. Parties can argue before a judge connecting via Microsoft Tams or Zoom or any other approved video service.

“In South Africa and several other countries across the continent of Africa, courts are already holding virtual hearings. Judicial officers can only decide a matter on papers with the consent of the parties,” Hanzi said.

In 2017, Parliament promulgated a progressive law, the Judicial Laws Amendment Act in order to facilitate virtual hearings and electronic service of process subject to rules being put in place.

To date, High Court rules have not been promulgated to make virtual hearings possible in the High Court.