Electronic filing of all documents in the Constitutional and Supreme Courts and the Commercial Division of the High Court is now possible thanks to amendments to the rules of these three courts published yesterday.
The three statutes implement the new rules laid down by Chief Justice Luke Malaba as Head of the Judiciary and the two Superior Courts of these Courts, and by the Chief Justice and Head of the High Court, Justice President Maria Zimba-Dube, for the commercial division of this tribunal. The regulatory texts were published in the Official Journal by the Minister of Justice, Legal and Parliamentary Affairs, Ziyambi Ziyambi.
Only the amendments for the commercial chamber give an effective date of May 1, and this becomes important because of the last modification of each regulation: “Six months after the entry into force of the electronic filing system, the court will become a completely paperless court, barring exceptional circumstances”.
Authorization to return to paper can only be given by a judge of the Constitutional Court or the Supreme Court of each of these two jurisdictions, or by the senior judge assigned to the commercial division of that jurisdiction.
Currently, documents can be filed in all three courts either on paper or electronically, with the Commercial Division leading the countdown to paperless court.
In addition to e-filing procedures, the new rules also allow for a virtual court platform. This allows, under tightly controlled circumstances, litigants and witnesses to be physically elsewhere, usually in a courtroom closer to home or other approved location, with a police officer always present.
Most of the rule changes change the definitions of things like service of documents to include the electronic version, with the heart of the system being the new integrated electronic records management platform.
Litigants must create an account on this platform, following all the instructions given, and then access this account on the Internet. This is the platform that will be used to send and receive documents and pleadings, and additional rules specify how transmission must be proven in the event of a dispute and how documents must be electronically signed.
The rules go into a lot of detail about these electronic documents, for example they must be combined into a single PDF file with consecutively numbered pages for each submission, and the pages identical to the hard copy which must be kept for record purposes. . The rules go one step further; litigants should write in Times New Roman 12pt font with 1.5 line spacing. Judges want easy-to-read documents without fancy typography.
Particular care was taken when receiving the documents sent. In addition to an email address, those using the system must provide a backup email address as well as a mobile phone number provided by one of three Zimbabwean mobile networks. If, despite all this, you do not respond, then it can be assumed that this is deliberate.
The virtual court system was designed to facilitate the testimony of witnesses in a reasonable number of cases. The platform is set up by the courts, and generally the offsite locations will be courtrooms close to where the witness lives. The possibility exists for other locations, such as a law firm, but here the supplier will have to purchase the required hardware and software.
Rules are in place for these off-site locations. A policeman must be present. When there are two or more terminals, both parties to a dispute must use separate terminals, but when there is only one terminal, there are rules about who can be seated next to the person who attest.
The three courts launching e-filing and virtual courts invariably have legally represented litigants and appellants, and attorneys are expected to be thoroughly familiar with the procedural rules of these courts on a routine basis. This will facilitate the implementation of the system.
At present, all criminal courts, both at magistrate and high court level, remain off electronic systems and continue as they used to, although there are plans at some point to allow hearings routine in remand prisons.
Lower-level civil and commercial courts, which are very busy and presided over by a magistrate, also remain outside the electronic system. These deal with things like maintenance claims, small debts, unpaid rent, etc., and many litigants and those being sued are not legally represented. The presiding judge usually takes an active role in finding out the facts, ordering people to come back the next day with the required receipts and payslips, for example, before rendering judgment, rather than relying solely on what is said by unrepresented persons.