IN THE SOUTH GAUTENG HIGH COURT,  JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
Case number: 28154/2011

	 

DELETE WHICHEVER IS NOT APPLICABLE

(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED: 

____________________        ____________________
DATE				        SIGNATURE

               		      

In the matter between:
URAMIN INCORPORATED IN BRITISH COLUMBIA                                                                                                               
trading as AREVA RESOURCES SOUTHERN AFRICA                                              Applicant 

and 

PERIE, CAROLYN                                                                                                        Respondent 

JUDGMENT IN INTERLOCUTORY APPLICATION 
______________________________________________________________________________

Summary:  
1.	Interlocutory application for evidence to be led by means of video link; 
2.	This court had to evaluate  on the one hand     the claims  of   globalization of  economies,  worldwide  dispersal of  potential witnesses,    dissemination of communication  throughout many jurisdictions and in a multiplicity of formats,   deployment  of employees  and the transitory nature of much employment  and and o  On the other  hand,   there are the responses  availed by expanding and more easily available technologies of which video conferencing is only one;  
3.	Plaintiff was a South African based employee of a multinational whose former employees were now based in Paris and Dubai who were not available as witnesses  in Johannesburg  by reason of the absence of any  current obligations to either party and   their commitments in Paris and Dubai.   
4.	In a sense,   the grounds of this application reflects   the participation of South Africa in  the greater world economies.     No longer is this country a parochial backwater  which is the pariah of the world; we no longer employ only  white South Africans  on an almost lifetime commitment  in local  enterprises carrying out business  almost exclusively within our borders.   This country may be at the tip of the continent of Africa but  the economy is run by a multiplicity of nationalities of all races and both genders; the corporate sector  is  replete with multinationals and South African  entities trade  throughout the world ; personnel    may be  employed on one continent,   based on another and carry out their duties on yet another;  personnel     work on contract or consultancy basis  and seldom serve out a lifetime’s career within  the confines of one employer.    
5.	Evidence of witnesses clearly essential to case of defendant and to a just decision in the trial; 
6.	The technology of the video link is now accepted both in other jurisdictions and South Africa as  an efficient and an effective way of providing oral evidence both in chief and in cross examination” and that this is “simply another tool  for securing effective access to justice”
7.	The procedures followed in hearing the evidence of the witness in Paris and the witness in Dubai set out and difficulties noted. 

SATCHWELL    J
	
INTRODUCTION

1.	This judgment deals with  one aspect of the  continually developing  response of our courts to the marvels of modern technology.  Specifically,  the  use of video link to procure the evidence of witnesses  based in Paris and Dubai who are not available or willing to attend at the court in Johannesburg. 

2.	This application was made at the commencement of  the trial.  I gave my ruling  immediately after hearing argument in order that the trial proceedings would not be delayed and so that the appropriate arrangements could be made for the hearing of the evidence of the two witnesses who were  in different countries and in different time zones.    At the time I did not give the reasons for my ruling.

3.	Obviously,  each application for the use of  video linkage  procure the evidence of      witnesses who are not available to a  trial court  must rely upon its own particular facts and circumstances.    I have heard a number of such applications and  heard evidence   in this manner in a number of trials.   My experience is that  the approach of both South  African courts and courts in other jurisdictions  must  continuously try to  be relevant to and keep pace with rapidly changing   demands placed upon judicial practice.     On the  hand,  there are    the claims  of   globalization of  economies,  worldwide  dispersal of  potential witnesses,    dissemination of communication  throughout many jurisdictions and in a multiplicity of formats,   deployment  of employees  and the transitory nature of much employment and so on.  On the other  hand,   there are the responses  availed by expanding and more easily available technologies of which video conferencing is only one.

4.	In now handing down this judgment, I have included reference to   evidence  as it emerged at  the trial.   Obviously,  I could not have known all these factors at the time of making my ruling but  the knowledge which I gained during the trial has confirmed my confidence  in the ruling which I made at the commencement  thereof.   

5.	 Similarly,  I have here  included comment on the video conferencing procedures as they eventuated because I have  been approached by other  judges  for information on this procedure and this may be of use to practitioners.   
BACKGROUND TO THE EVIDENCE SOUGHT TO BE LED
1.	Plaintiff  was an employee of the defendant who brings a claim for specific performance based on  contract alleged to be partly written and party oral.   She avers that, when it employed her in December 2007, the defendant  verbally agreed to compensate her for certain share options accruing to her from her previous employers which she would forfeit upon departure but that the defendant failed to compensate her for the loss of those benefits. The defendant disputes the claim averring that the written contract of employment is decisive of her claims and  has raised a special plea that plaintiff   concluded a retrenchment agreement  in May 2011 which   settled  all claims which  she now makes against the defendant.
2.	Plaintiff is based  in South Africa and was employed by the defendant in this country.   It is common cause  that the defendant, a multinational and part of the Areva Group ( then 80% owned by the French Government) was, at all material times,  registered in accordance with the companies laws of the Republic of  South Africa  with place of business and registered office in Johannesburg.  The agreement of employment was concluded in  South Africa.   The litigation  is  rightly conducted within the jurisdiction of this court. 
EVIDENCE SOUGHT TO BE LED IS VITAL TO THE DEFENCE AND TO A FAIR OUTCOME
3.	The  Vice President of Human Resources   of the Mining Business Unit of Areva,   David Dragone  (‘Dragone’),   was, throughout the relevant time,  based in Paris.    Dragone  was instrumental in the process leading  to the employment of plaintiff with the defendant.    He was directly involved in negotiating  the terms and conditions  of her employment.   
4.	  Notwithstanding the written document  concluded between the defendant and the plaintiff which purported  to  set out the ‘Basic Terms and Conditions’  of her employment,   her claim for a sum   ranging from     230 000  (two hundred and thirty  thousand)   and   340 000 (three hundred and forty thousand) Australian Dollars  rests upon the  agreement which she claims  was reached between herself and Dragone but not recorded  in  writing.  At the trial,   most of  the evidence revolved around  that which plaintiff  averred  was discussed between herself and Dragone concerning compensation  for the share options which she would forfeit if  she departed from her  then employer to take up employment with  the defendant.  Her case rested upon their  verbal discussions,   emails exchanged between them and documents which she had prepared and forwarded to Dragone.
5.	Dragone is clearly essential to the case of the defendant.  He  was the only person from the defendant engaged in certain conversations with the plaintiff.  He was the author of emails to the plaintiff,  the recipient of communications from her and party to certain communications with the then Managing Director of the defendant  (‘Macpherson’)  who made the offer of employment to the plaintiff and to whom she then reported  but  who is no longer employed by the defendant.
6.	At the time of plaintiff’s retrenchment in 2011,  the  then  Vice President for Areva Mining Division for Southern Africa  was Enrico Barbaglia  (‘Barbaglia’).   It was Barbaglia who signed the  settlement agreement upon her retrenchment  which document specifically  recorded that  it “constitutes  full and final settlement  of any claims whatsoever which either party may have arising ... out of the contract of employment”   and that the document “constitutes the entire agreement between the parties…”.    It was plaintiff’s case at the trial that  she  made  certain insertions and  deletions to the document in the presence of Barbaglia and that   Barbaglia   had  assented  to   these  written amendments before  the document was  signed by plaintiff.    
7.	Barbaglia is the only person  whom the plaintiff alleges was made aware of her amendments to the retrenchment agreement and  consented thereto.
8.	I have no doubt that,   without the evidence of either  of these witnesses, the defendant would be severely handicapped in the conduct of its defence and, if necessary,  its counterclaim.  
9.	 There is no doubt that the evidence of both Dragone and  Barbaglia  were  vital to the defendant in response to plaintiff’s claims.   At the trial it was  apparent that,  if Dragone and Barbaglia  did not give evidence,  the defendant would have to rely only upon  interpretation of the two written documents  and would be precluded from rebutting the evidence of the plaintiff which would then go unchallenged. 
10.	If the defendant were precluded from leading the evidence of these essential witnesses,   I would  have grave doubts about the fairness of the trial and of any judgment which I would hand down.
NON AVAILABILITY OF WITNESSES 
11.	Neither Dragone nor Barbaglia  were,   at the time of this trial,   still in  the employ of the defendant or the Areva group and neither  were  based in South Africa.  Neither    are amenable to disruption of their  working and personal lives  and neither are subject to the control of or the wishes of the defendant.    Defendant’s attorney  made an affidavit explaining that   they were “no longer under the supervision and control of the Areva Group”.   
12.	Interestingly,   neither  Dragone nor Barbaglia made affidavits in support of this application or setting out why  they were not available to be in the court in Johannesburg.       This was the subject of some discussion at the hearing of the application.   I took the view that  the deponent to the affidavit  is a senior attorney who had stated on affidavit that she had consulted with both Dragone and Barbaglia.   There was and is no reason to doubt her bona fides in any manner.  I any event,  the contents of her affidavit were confirmed by both witnesses when we heard their evidence. 
13.	As far as Dragone was concerned,  it was stated in the attorney’s affidavit that he no longer works for the Areva Group and  is  now employed by CGG, an oil exploration company,  with its head office situate in Paris.  He advised the attorney that he is in charge of approximately 10,000 employees and is required to travel frequently to different parts of the world.  At the time of the trial  he was commitment to work appointments in Paris.   He  “cannot come to South Africa”.
14.	Barbaglia  is currently living and working in Dubai.   He advised the attorney that “he cannot travel to South Africa to give testimony in person due to his work commitments”.
15.	Both the defendant  and it’s attorney were clearly in a somewhat difficult position.   The  assistance of former employees  was required  for this trial.  But both Dragone and Barbaglia  have  employment and personal obligations elsewhere.   It can hardly  be expected that either they or  their current employers would be enthusiastic about  their  taking time to consult with defendant’s attorney and/ or counsel,  making statements,  deposing to affidavits  and (even less) travelling to South Africa.    
16.	Neither potential witness  can be subpoenaed to testify before this court in Johannesburg.
17.	In a sense,   the grounds of this application reflects   the participation of South Africa in  the greater world economies.     No longer is this country a parochial backwater  which is the pariah of the world.   We no longer employ only  white South Africans  on an almost lifetime commitment  in local  enterprises carrying out business  almost exclusively within our borders.   This country may be at the tip of the continent of Africa but  the economy is run by a multiplicity of nationalities of all races and both genders.   The corporate sector  is  replete with multinationals and South African  entities trade  throughout the world.       Personnel    may be  employed on one continent,   based on another and carry out their duties on yet another.  They   work on contract or consultancy basis  and seldom serve out a lifetime’s career within  the confines of one employer.    

18.	When I first commenced  the practice of law some  thirty five years ago,  it was a notable feat to procure that a judge would move from  his (always his)  chambers or courtroom to hear the evidence of a witness confined to bed  in  his own home by reason of illhealth  but which  home  was still  within  the geographical jurisdiction of the court.  It was an even greater feat to procure the evidence on commission of a witness who refused to come and give evidence in South Africa..     In  such cases,  the grounds were  based upon the absolute  impossibility of procuring the attendance of the witness at court. . Today the situation is different.   We are far more open to a multiplicity of  situations.
19.	  We  rightly expect and prefer that  viva voce evidence in both civil and criminal proceedings be given  in a courtroom at the seat of the court in the presence of the parties and their representatives and the judicial officer and the public.   The reasoning is  obvious.   The court buildings  and personnel and the procedures therein are  dedicated to the process of litigation.    Anyone may attend.  The legitimacy of the process derives, in part, from this  dedication.     
20.	Yet within these stone walls  staffed by personnel dressed as though they  were clerics in the reign of Henry the Eighth,  we  have no difficulty in recognizing the need for accommodating witnesses to meet the interests of justice.     We utilize many  different ways of procuring evidence because both the Constitution and the High Court Rules  permit  development of appropriate procedures    We do so  because we recognize that  court procedures and the Rules which regulate such practices are devised to administer justice and not hamper it .  Evidence is received on affidavit;     closed circuit television regularly  allows for  evidence  to be given in  one room and transmitted to  a courtroom;  inspections in loco take place  and  judges or nominated persons take evidence on commission.     The test to be applied by the court in exercising its discretion is  whether or not  “it is convenient or necessary for the purposes of justice”.
21.	These exceptions to the general rule  are not limited to situations where the witness is absolutely unavailable to attend at court.   We hear from child witnesses who might be distressed  if called to be physically present in court;  we receive affidavits from  various persons because of the nature of their evidence and   because  this will reduce the time  expended   thereon;    we go on inspections  in loco because only then will we comprehend what a witness has or will say;  we  have commissions because  the court can travel while the witness cannot or will not.  We have regard to both “convenience” and “the interests of justice”.
22.	In summary,  courts  cannot be ignorant of    the needs of the societies and economies within which they operate.  Legal procedures must comport to the exigencies of globalization and the availability of witnesses as I have discussed above.   Courts  must  adapt to the requirements of the modernities  within which we operate and upon which we adjudicate.    
23.	To the extent that I  have previously expressed the view that  it would be “an indulgence” to grant an application to hear evidence through video conferencing,  I would restate  my view to be that I still consider that the norm should be to hear witnesses in the courtroom  but that  relaxation of this preference  should neither be considered extraordinary nor  be discouraged.    I can envisage, though it was not an issue in the present case,  situations where the costs of bringing a witness to the courtroom would be prohibitive  and that reasons of economy  alone might well dictate evidence received outside a courtroom which   does not itself  have video-conferencing facilities. 
24.	We do not currently limit the use of various technologies only  to  the dire and desperate situations  where a witness cannot be physically present.   We must  accept that witnesses  are here today and gone tomorrow and that  their  employers,    colleagues , clients and  compatriots see nothing unusual in this.  Courts must accommodate this mobility or find ourselves increasingly out of synch and eventually irrelevant save for the most simple and parochial of disputes. 
25.	I find that it is sufficient reason that Dragone and Barbaglia are living and working elsewhere,  do not desire to travel to South Africa,  have no obligation to either party by which they can be enticed so to do to find that this court should consider receiving evidence by video  link. 
TECHNOLOGY TO BE EMPLOYED
26.	It has been suggested that the  form  in which evidence is tendered  is not finite.    After all evidence  was originally only received viva voce in person and then accepted by way of affidavit and now is received through  video conferencing.    No doubt other means will be discovered in due course. 
27.	At the time that the Rules of Court were first formulated,  witnesses from beyond the jurisdiction  of the then Transvaal courts travelled by train  from the coast and then by motorcar and then by aeroplane.   They may even  have  arrived at the coast after week- long voyages by steamship from another continent.   Urgent messages arrived at this court by way of telegrams  whose contents and authors were  difficult to authenticate. 
28.	Neither the Rules of the High Court  or the Civil Proceedings Evidence Act  expressly   stated that  more modern technologies than pen and paper or living, breathing persons  are permitted in the High Court.  The legislation has not  needed so to do.  The Constitution and the Rules  enjoin us to make the necessary developments on a case by case and era by era basis.
29.	This court does not have WIFI throughout as may other  courts in South Africa and other jurisdictions;  we do not yet have electronic  lodgment of pleadings and documents in the office of the Registrar nor do we have electronic archives;  we do not have  closed circuit television  in every courtroom;  we do not have any video conferencing facilities in any conference room for holding case management meetings or hearing evidence.  We  intend  to have these facilities.  It is budgetary constraints not opposition to technological  which is   holding us back.
30.	It is now almost trite that video conferencing  “is an efficient and an effective way of providing oral evidence both in chief and in cross examination” and that this is “simply another tool  for securing effective access to justice” (see paragraph [10] of the speech of Lord Carswell in  Polanski v Conde Nast Publications [2005] UKHL 10).  This process  has been utilized  in numerous South African courts
31.	Where video conferencing has taken place witnesses have been  viewed in person,    have been heard without intermediaries,     have been viewed at the same time and in the same manner  by all litigants and legal representatives and the judicial officer.  The only barrier to observation  has been the  exigencies of the electronic medium itself where  one or both of the audio  or the  video may  be problematic to make out.  In such case all parties are equally entitled to require  reconnection or repair  of the technology  or repetition  of the evidence.   The witnesses can be supervised in a number of ways.  They can be required to present themselves to an agreed venue,   may be secluded from other persons, may be monitored by an officer of the court of the jurisdiction in which they are present,  may not view documentation without notification of the monitoring court officer.
32.	In short, I remain of the view  (as previously expressed   the Kidd v Van Heeren judgment)  that “”Our Rules of Court did not initially refer to anything other than pen and paper, they advanced to encompass the concept of the typewriter then the computer thereafter the telefax and now email.  Why video conferencing or other technology should be excluded is beyond me”.
PROCEDURES FOLLOWED IN THIS TRIAL
33.	The court reconvened in  the offices of the defendant’s attorneys.   Proceedings were held in a conference chamber where myself, my clerk, counsel and attorneys for both plaintiff and defendant were present as well as several technology  boffins.
34.	A large screen was placed against the wall at the end of the conference table.  All of us in the room could see ourselves on the screen for much  of the time.  We could see the witness and the monitoring court officer  in both Paris and Dubai.  The audio component could be heard by everyone in the room.
35.	There were problems with technology.  Several times we lost he audio or the visuals.  One of the witnesses and his monitor changed rooms to improve the technological message.
36.	Before any evidence was heard  I asked the person accompanying the potential witness to identify himself or herself and surroundings.    In Paris,  Ms Marianne Kecsmar,  an independent lawyer who is a member of both the Paris and the New York Bars,  was present with Dragone in one of the conference rooms of  solicitors Linklaters.    Sometimes an IT assistant was present.   In Dubai,  Mr Hamid Tayseer,  a Jordanian Legal Consultant in Dubai, was present in the offices of an independent company in Dubai Internet City.   Legal representatives were offered the opportunity to question  both  these supervisors or monitors  as to their status,  independence and understanding of their duties.
37.	 I asked both Kecsmar and Tayseer as to the procedures  for giving evidence under oath in their jurisdictions.  Both indicated an absence of any particular format.  Accordingly,  I administered the oath to Dragone and  Barbaglia in accordance with South African procedure.
38.	Both Dragoen and Barbaglia then were led through their evidence in chief and were cross examined.
39.	At conclusion of their evidence I placed on record  observations made by myself.  Firstly,  there was considerable audio interference  prior to Dragone taking the oath.  This was resolved and when he did give evidence there were no time delays or lapses in the video/audio.  Both the verbal and visual evidence was clear.   Secondly,  the verbal evidence of Barbaglia was less clear but where there was lack of clarity he was asked to repeat his evidence.  There were occasions where the whole of his face did not appear on the screen – this was by reason of the way he was sitting and he was asked to move over.   Thirdly,  Dragone spoken quickly and with an accent and I sometimes missed out certain words but I did not ask him to repeat himself because his meaning was clear.  The same problem did not occur with Barbaglia.   Plaintiff’s counsel recorded his comments that  the visual problems pertained to a ‘frozen screen’ and sometimes  he missed out on contemporaneous visuals with the audio.
40.	The evidence was recorded and has been transcribed.  The  discs are placed by me in the court file.
CONCLUSION
41.	I  granted the application for the evidence of Dragone and Barbaglia to be heard through video conferencing.
42.	I made no order as to costs in respect of the opposed interlocutory application  because I believed this was an issue  which should be ventilated,
43.	I ordered that the costs of the video link was to be borne by the defendant.  After all these were their witnesses.  Although the plaintiff must have known that any witnesses  upon  which the defendant might  rely would  either  have had to travel from abroad or give evidence via video link,  I saw no reason why she should bear these costs  merely because she   having obtained employment in her own country  with a multinational whose former employees are dispersed throughout the world.

Dated at Johannesburg on this day the 9th of  December  2013.

_____________ 
K.SATCHWELL

Counsel for Plaintiff: Adv. N.J. Graves SC
Counsel for Defendants: Adv F.A. Bhoda 
Attorneys for Plaintiff: Glyn Marais Incorporated 
Attorneys for Defendants: Webber Wentzel 
Date of hearing: 4th November  2013
Date of Judgment:  11th  December 2013