litigatorThe management of documentation in the South African Courts has been problematic for some time, and, has been a source of frustration to lawyers and their clients. It is no doubt also a source of frustration for staff employed at the courts who have to deal with the day-to-day realities of a system that is outdated, under-resourced and under ever increasing pressure.

There are constant incidents of lost or misplaced files and documents. Court files are often seen piled up in corridors or strewn across desks in offices. The effect is additional strain on an already over-stretched court infrastructure, and in many cases a delay in justice being served. Legislation has been introduced, and Court Rules amended, allowing for an electronic system to be implemented, however both the profession and the courts have been slow to adapt. To be fair, the courts are probably unable to adapt until such time as the governing bodies make a decision on an immediate way forward and then take steps to implement a new system.

Even though the Court Rules have been amended to permit service electronically, this process has not been widely adopted by attorneys, which is probably partially attributable to a resistance to change the mindset on attorneys, and partially due to the fact that the verification of delivery is problematic. The traditional way of physically serving and filing documents remains costly, cumbersome and inefficient and a move to an electronic system is desperately required. It is inevitable.

Storage of Litigation Documents in The Cloud

It is critical that lawyers have immediate access to their case files and documents at any given time. In this regard, gone are the days when a physical file is required to house original documents.

With the current available cloud technology, original documents can now be stored electronically, where litigants, attorneys, counsel and judicial officers can access and view them at any time. The fact that a document exists in a digital format, does not mean that it holds less weight than a physical document. Section 14 of the Electronic Communications and Transactions Act No. 25 of 2002 (“the ECTA”) deals with what constitutes an “Original” document in the electronic data environment. In order to be deemed an original document, the integrity of a data message must be maintained, in accordance with subsection 14(2), and the relevant document must be capable of being displayed or produced to the person to whom it is to be presented. In addition, in terms of Section 13, where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used. An advanced electronic signature not only acts as a practical means to electronically sign a document, but also acts as a security check that will alert the user should the document be altered from its original form. Digital documents / data messages are deemed to be originals and satisfy the requirements of originals as laid down by both statute and the Rules of Court, particularly if they have been signed with an advanced electronic signature and the signature indicates that the document remains unaltered.

Of tremendous benefit to the entire legal community is that these files will never be subject to alteration, misfiling or misplacement. They will be available on call 24 hours a day and remain in their original form. Moreover, the quality of the documents is far superior to dog eared physical documents.

A case registry that is available anytime / anywhere creates peace-of-mind when it comes to retrieving and viewing critical files and documents. Cloud-based registries would also enable a practitioner to access a file or document (that may have been forgotten, misplaced or overseen) whilst in court with minimal disruption to the hearing.

An initiative to combine all such cloud-based registries of litigation documents, could quite simply be the genesis of an electronic court filing system, that many believe would be the panacea to the current court management challenges.


Electronic Service & Filing of Litigation Documents

As stated above, legislation and Court Rules now make provision for service of litigation documents electronically. In this regard:

Magistrates Court

Rule 5(3)(b) requires the summons to indicate whether the plaintiff is prepared to consent to the delivery of documents and notices subsequent to the initial process other than by physical or postal address.

Rule 5(3)(c) provides that if an action is defended the defendant may, at the written request of the plaintiff, deliver a consent in writing to the exchange or service by both parties of subsequent documents and notices in the suit by way of facsimile or electronic mail.

Rule 5(3)(d) gives plaintiff a remedy and the court a discretion if the defendant fails or refuses to give consent.

High Court

Rule 4A provides that all pleadings, notices and other documents (other than a document instituting action or process, like a summons) can be served by facsimile or email.
Rule 4(A)(3) ensures that Chapter III, Part 2 of the ECTA applies to service by facsimile or electronic mail.

Rule 17 provides for, amongst other matters, that a summons shall set out the attorney’s physical and postal addresses and where available, the facsimile number and the electronic mail address. In addition, the plaintiff may indicate the preferred manner of service (including via facsimile or electronic mail) in the summons and the defendant may also, at the written request of the plaintiff, consent in writing to the exchange or service by the parties of subsequent documents by way of facsimile or electronic mail. If the defendant refuses or fails to consent to such request, the plaintiff may apply to court for such consent to be ordered.

The amendment of Rule19 provides that the defendant may indicate the preferred manner of service in the notice of intention to defend. The defendant may also, in writing, request the plaintiff to consent to the service of subsequent documents and notices by way of facsimile or electronic mail. If the plaintiff refuses or fails to deliver consent then the defendant may make an application to court to grant such order.

The serving of litigation documents electronically, although specifically allowed for, has not been adopted as widely as one would expect. Some possible reasons could be:

• Lack of a validation of delivery to the opponent through a certificate of service
• Practice habits and a reluctance to adopt technology. A mindset change that one could compare to the initial adoption rates of internet banking when it was released.
• The fact that one would still have to file the document physically at court, until such time that an electronic court filing system becomes available.

Certain service providers specialize in filing court documents on behalf of attorneys. The adoption of electronic service in combination with manually filing a physical print out, on behalf of the attorney, addresses the pain associated, and money wasted, with queuing at court to attend to filings. By adopting the use of advanced electronic signatures and applying S18(2) of the ECTA, an attorney is now able to carry out the task of serving and filing litigation documents in a seamless electronic environment.

An electronic document signed by way of an advanced electronic signature only exists in its original form whilst it is a “digital message”. It is not practical or currently possible to file a digital document with the court, however one is able to file a certified physical copy of the digital document in a court file.

This would be done by applying S18(2) of the ECTA:

“Where a law requires or permits a person to provide a certified copy of a document and the document exists in electronic form, that requirement is met if the person provides a print-out certified to be a true reproduction of the document or information.”

S15 (4) of the ECTA is also relevant in this regard:

“A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.”

See also Firstrand Bank Limited v Venter [2012] JOL 29436 (SCA)


Advanced Electronic Signatures

The ECTA provides that where an original is required, that requirement is met if the document has an advanced electronic signature.

Advanced electronic signatures have become a hot topic of late. In the long term it is apparent that advanced electronic signatures will form an integral part of everyday practice, however it may take some time for the profession to adopt the technology. It is important in this regard to differentiate between advanced electronic signatures and ordinary electronic signatures (often simply a photograph or screenshot of a signature). Advanced electronic signatures are defined in the ECTA as an electronic signature which results from, a process which has been accredited by the Authority as provided for in section 37.

An electronic signature (other than an advanced electronic signature) is defined as data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature. Importantly, this type of signature does not meet the requirements for an advanced electronic signature, and therefore, doesn’t offer the advantages outlined above.

When being allocated an advanced electronic signature, in terms of the ECTA, the applicant is put through a registration and validation process that includes, amongst other things, background checks with Home Affairs, finger print verification and a “face to face” assessment meeting.

The higher status and functionality of an advanced electronic signature is laid out in Section 13 of ECTA:

“Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used.”

The Law Society is conducting pilot projects in Gauteng and KZN, aimed at encouraging and investigating the use of advanced electronic signatures amongst attorneys. These signatures take proof of identity of the signatory to another level. The status of the signatory is associated to the advanced electronic signature / Class 4 Signature and enables one to immediately assess whether that signatory’s credentials are in order. Should an attorney be struck off the roll or suspended, his/her signature credentials would be immediately amended to alert the person viewing it.

A practitioner with multiple functions (attorney, notary, conveyancer) could have a signature assigned for each of the specific roles. This would not necessary require her to manage three separate advanced electronic signatures, but through multi factor authentication and application software have the multiple Class 4 signatures linked to the associated image – allowing her to swap between multiple certificates, with ease.

An advanced electronic signature does not only become a digital substitute for a hand written signature, but through the technology applied, is able to protect the integrity of the document to which it is attached, in order to prevent changes in error or fraudulent intentions. An advanced electronic signature thus serves to authenticate the source of the document as well as a means of verifying document integrity. Where the law requires a document to be an original, Section 14 of ECTA provides that the requirement is met if the integrity of the electronic document has been maintained. Signing using an advanced electronic signature facilitates for the integrity of the data message remaining intact. This allows for pleadings to be signed with an advanced electronic signature and still conform to the rules of court.

The Magistrate Court Rules now make specific reference to advanced electronic signatures, thus appointing the same standing as associated to an original hand written signature.
Magistrate Court Definitions – “Signature” includes Advanced electronic signature as described and defined in Chapters I, II and III of the ECT Act and also applies to “sign”, “signing” and “signed”.

On its own an advanced electronic signature does not currently provide much functionality for litigation attorneys, however once coupled with a platform or method that combines the advanced electronic signature with the ability to sign electronic documents, and then fulfill the requirement of delivery, they become something of great value and very simple to implement and use.

Advanced electronic signatures mitigate risk when communicating or transacting on cloud based platforms. A certified advanced electronic signature is strong evidence in support of proving the function of a signature in an electronic transaction.

In order for the advanced electronic signature to be meaningful to the user it needs to be used in conjunction with customised systems or platforms. Examples of such systems exist for conveyancing and litigation. Through cloud-based litigation platforms, attorneys can apply their advanced electronic signature to pleadings and notices and have them served on opponents, and filed at court. An additional benefit is that the documents will remain in their original form, in “the cloud” and be accessible anytime / anywhere with no fear of them being lost, misfiled or tampered with.

Conclusion

It is inevitable that attorneys and the courts will move to an electronic method of signing, exchanging, filing and managing documents. Task teams and work groups are being set up to investigate the introduction of electronic methods in managing litigation processes. It is no secret that the authorities are desperately trying to find an electronic solution to the current problems experienced in the courts. The reality is that the technology platforms, the rules and the legislation exist for this to take place.

What is now required, is for the legal profession to change its mindset.

Content provided by Litigator.

ABOUT LITIGATOR

Litigator is a world class leading South African supplier of a cloud-based litigation platform. Aimed at Attorneys and Candidate Attorneys, Advocates and their clients, Litigator electronically manages the litigation process from end to end. Litigator offers a user-friendly platform designed by practicing South African litigation attorneys, with the objectives of accessibility, affordability and convenience as its core.

Offering peace of mind to the Legal industry through, storage of litigation documents in a secure cloud-based case registry, electronic servicing & filing of litigation documents, providing advanced electronic signatures, simplifying the preparation of Automated Court Notices, providing online Indexing and Pagination, and creation of court bundles through the Litigator patented software. Litigator has a solid foundation of leading edge technology, innovation and security.

Contact:
Bruce Henderson
082 998 3087
www.litigator.co.za

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