eDiscovery in SA – Huge milestone towards Rules changes but is arbitration the best route in South Africa?

As you may have read in my previous posts, I was invited by the Rules Board of South Africa to participate in a process to amend the Rules of Court. This included providing input on the incorporation of eDiscovery. Specifically, I was asked to comment on how eDiscovery could impact access to justice, reduce time and costs in the High Court and Magistrates Court, and to share any relevant information from other jurisdictions with experience in implementing eDiscovery. Furthermore, I was to suggest specific amendments to the Rules and, in my case, write a protocol as to how to do it!

After a great deal of thought I have submitted my proposal – all 16 pages of it! When submissions were made back in 2017 by the Law Society, with my input, the suggestion was to change the Rules to apply in the High Court only. This time, after much consideration, I have included the Magistrates Court as well. It seemed to me a bit like changing which side of the road we drive on but only letting it apply to taxis and buses at first.? I consulted people I know well on this topic and relied upon what has happened in other jurisdictions.

For obvious reasons I cannot disclose all the details here of what has been included but my proposals tend to follow the route taken in New Zealand when they changed their rules some years ago. In this respect I am indebted to my good friend Andrew King who was instrumental in the rule changes in NZ and he and I are still in regular touch. Basically it is a two- tiered approach with either standard discovery or customised discovery and there will be certain criteria where the customised discovery will apply. For example, the value of the claim, the volume of electronic data, certain types of actions, and where, either the Court orders or the parties agree on customised discovery. Additionally, it calls for an early Case Management Conference (CMC) where this matter is decided upon.

Then I have drafted a protocol including the listing and exchange of discovery documents so there is consistency and uniformity. Again, this follows the New Zealand route, slightly updated and amended, and the proposal is that this must become a Practice Directive here, linked to the Rules.

I have then dealt with all of the reasons that SA needs to adopt eDiscovery into its Rules and given examples of time and costs savings as well as levelling the playing field to enable smaller law firms and their clients to compete with their larger neighbours equally.

Let us see what this brings and as I said I am not the only person who was asked, and I have no idea what others may or may not have contributed. I do not expect any quick response, but I have offered to help in any way, e.g. in drafting new rules, explaining my thoughts, and a demonstration of a typical eDiscovery software solution.

All of this brings me to a different but connected topic. I am hearing what I can only describe as horror stories about civil proceedings in the high Court in SA. I am told that CMC’s have been suspended in Gauteng (not sure why but something to do with resources). I am told that cases are taking a ludicrous amount of time to get to Court, with a case being brought now would have no chance of being heard before 2027 at the earliest. I am hearing of a lack of Judges and Acting Judges having insufficient experience and quality. I am also told that if you exclude RAF cases, some medico-legal cases, actions brought by or against Ministers or political entities, then there are virtually no cases in the High Court lists. In other words, there are no commercial litigation matters to speak of. This being the case one wonders if there is any point in changing the Rules!

So, what is happening to commercial disputes in South Africa and the answer is they are going to Arbitration. Hardly surprising given all of the problems highlighted above! I know, personally of a number of large cases, some with millions of electronic documents that are being dealt with by way of arbitration. It works, you can have a conference with the Arbitrator quickly and easily, your case will be heard largely, when all sides agree, in other words much quicker than the High Court. Furthermore I am told that many senior Advocates would rather be Arbitrators than Judges in South Africa! Phew, what a mess!

The point of all of this is that I have been encouraged, and have agreed, to approach AFSA with suggestions about eDiscovery in SA. As you know the rules of arbitrations usually follow the rules of civil procedure in each jurisdiction as to matters such as discovery and that means in SA, that at the moment there is no eDiscovery! How about arbitrations taking the lead here and adopting eDiscovery into its rules given the large number of cases they are getting with increasing volumes of data? Furthermore, with SA being heavily involved and aspirant of international arbitrations, having eDiscovery would bring them in line with their international counterparts.

I have contacted the Chairman of AFSA, sent him all of my information about changing the rules of civil procedure and requested a meeting. Watch this space!

Terry Harrison

[email protected]

+27(0) 748347818

www.Harrisonsedconsulting.com