The COVID-19 pandemic has caused a global shift in the way people work all over the world. There has been greater emphasis on virtual working, putting immense pressure on countries that were not prepared to shift to working virtually in important areas of the economy, with a big spotlight being on the courts.
In Zimbabwe, the courts have been upgrading, albeit slowly, over time and in the midst of this pandemic the much-anticipated Commercial Division of the High Court became operational. This article will focus on the changes brought about by the new Commercial Division Rules and discuss how far Zimbabwe has to go before it catches up to the future.
On May 31, 2020, the High Court (Commercial Division) Rules, Statutory Instrument 123 of 2020 (the Commercial Rules) were gazetted in Zimbabwe. The Commercial Rules came into operation on June 1, 2020, signifying the commencement of a division of the High Court specifically dedicated to the hearing and resolving of commercial matters. This is in line with the drive to increase the ease of doing business. The courts in Zimbabwe now have dedicated divisions to determine tax disputes, labor disputes and commercial disputes. This in an effort to increase efficiency within the courts and the expertise in specific areas of the law. The Commercial Rules in particular were also widely anticipated as they will indicate the direction in which the courts will take with respect to the use of technology.
One of the most significant changes is found in Rule 58, which states that the Commercial Division will become a fully paperless court and only operate electronically by June 1, 2021, giving the Commercial Division one year to set up the appropriate and secure electronic filing services and portals in the registry and on the internet. This is a welcome change which will assist in the efficient resolution of commercial disputes. Although the Commercial Division is supposed to be a fully electronic court, an important aspect to note from the Commercial Rules is that they do not make provision for virtual hearings.
In 2020, virtual hearings and how prepared courts and tribunals are for these hearings have become major concerns. The committee for drafting the Commercial Rules in Zimbabwe was established in January 2019 and the first draft was produced in April 2019. At the time of drafting the Commercial Rules, the need for virtual hearings was not urgent. The exclusion of virtual hearings from the Rules, under normal circumstances, is understandable. This is because, although virtual hearings are convenient and increase efficiency while decreasing costs, especially where a witness or a party is in another country, there are a number of challenges that arise which make them less than ideal. For instance, a Virtual Hearings Report published by DLA Piper in May 2020 highlights some of the challenges that are faced when a hearing or a trial is held virtually. The most apparent challenge is that of how to deal with witness evidence during a trial. Generally, witnesses should not be coached, or use notes, or be guided or influenced in any way as they give evidence. When a witness is not in the same room, however, it is difficult to monitor whether the witness is relying on notes, or whether there is someone else in the room assisting the witness with their testimony. Evaluating witness evidence is largely based on non-verbal cues – for example, a witness who is lying might divert their eyes. In a virtual hearing, however, it may well be that the witness diverted their eyes because their child just ran past behind the computer. Furthermore, the tension of physically being in the court room also assists in encouraging witnesses to be honest. If they are being examined while sitting on the couch at home, that tension is lost.
Another challenge is that faced by the legal team, which is most efficient when they prepare together and assist each other as co-counsel throughout the hearing. It is not ideal, therefore, to have the legal team sitting in different locations. There are further challenges regarding production of evidence and exhibits during a trial. Accordingly, the Commercial Rules do not make provision for virtual hearings, which may well have been a conscious decision after weighing up the benefits and challenges, especially in Zimbabwe where access to reliable internet is not always available. It cannot be escaped, however, that virtual hearings are on the rise and Zimbabwe’s neighbors in South Africa are already conducting these hearings and mitigating the challenges presented by them. In order to catch up to the future, Zimbabwe will need to start aligning the court rules and practice to global trends to increase efficiency and reduce costs.
Further important changes
Although the electronic nature of the Commercial Division is still in progress and virtual hearings are not yet on the cards, there are some immediate changes which have already begun to take place in the way of digitalizing the Commercial Division. One of the immediate changes is allowing electronic serving. The Commercial Rules allow court documents to be served via email and fax and to “any address previously disclosed and used between parties in their business transactions” as opposed to strictly by hand delivery. In other courts in Zimbabwe a litigant is required to make an application in order to serve in any other manner than hand delivery, which causes delays in resolving disputes. This also implies that a failure to serve on the address nominated in the contract as a party’s address for serving of all notices and process is no longer considered a defective service. Despite this new development, however, some law firms have continued to serve documents physically. It is not immediately clear why law firms are continuing in this manner; it may be due to force of habit, but it is more likely that there is a lack of trust in the reliability of serving documents and pleadings electronically in Zimbabwe. Many lawyers still use personal email addresses and there is a risk that pleadings will be directed to a spam folder.
The Commercial Rules also allow for the Registrar to sign documents electronically and for electronic allocation of case files to judges. At present, due to the fact that the digitalization process is still underway, these processes are still being done manually.
Rule 46 provides that “the authentication of any electronic communication shall be effected by means of electronic signatures, and certified back-up copies of the communication in paper form or by such other acceptable means.” The Rule is under the heading “Electronic Service,” however, it is apparent that electronic signatures on pleadings that are filed at court and served electronically will be acceptable.