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Will Covid-19 be the trigger that transforms the justice system?

Covid-19 has arrived the world over, with a torchlight in hand to cast a light on the shadows that lurk in our society. It's opening our bottom drawers, and airing the dirty laundry of decades of consumer-driven markets.

The world is unequal.

The systems we've created work only for a few. Suddenly in the absence of our daily hustle, it’s become glaringly evident in many industries. The justice system, one of them.  If ever there was a belief that the justice system wasn’t working, the reasons are now more evident than ever. A flow of reports has been highlighting the justice gap and legal struggles for decades. At last count, close to five billion people had unmet justice needs, according to the World Justice Project. Yet, the profession and the court structures persist in standing, with their mounting structural flaws. It has become a dangerous game of Jenga, and Covid-19 might just be that last block that brings it to a tumble. 

A Legal Lockdown   In a recent survey conducted by LAW FOR ALL, in collaboration with the Futures Law Faculty, 92% of legal practitioners are in agreement that the Covid-19 pandemic has harmed access to justice. The survey results reveal a cynical view around the agility of our court systems, which received an appalling 27% rating. As the national shutdown was announced, there was much stumbling in the processing of justice, and courts were limited to emergencies. Many citizens facing labour, family and civil issues during these uncertain times have had to look elsewhere for relief. And when the courts re-open, even fewer South Africans will have the means to afford representation, and it is doubtful that the courts will cope with the added pressure. 

The Justice Dilemma  As the epidemic forces many industries into the Fourth Industrial Revolution, the Department of Justice has some critical choices to make on the road ahead. Currently, if one looks at the latest annual report published by the the Department of Justice and Correctional Services, only 3% of its yearly budget is allocated to modernising the justice system. At the same time, more brick and mortar courts are presented to ease the justice gap.

More courts, more justice! But does that add up?

The cost of court services clocks in at a staggering R6.4 billion, which makes up 33% of the department's annual budget. Real transformation, locked in the digital space, is lagging behind. The Justice Modernisation Programme decreased by R51 million from the previous year. To add further perspective, Legal Aid South Africa, receives 9% of the budget to help those in dire need if they pass the means-test. In the time before the pandemic, trying to enhance legacy systems with more of the same, was the name of the game in many industries. We have to get out of this comfort zone and re-imagine our world. 

In a post-Covid world, can justice still be confined to buildings?

Will the Department answer this by cutting funds allocated to the Justice Modernisation Programme or the high costs of new High Courts as the government scrapes together funds to save the economy? 

Lawyers Lag Behind   Of the legal professionals surveyed by LAW FOR ALL, only 30% have online case management systems that allow them to organise and manage their case-related documentation on a computer. This means that most of the firms still make use of physical paper and files to manage and organise cases. This also forces professionals to work from a centralised place instead of being able to work remotely. The majority of lawyers cited WhatsApp as their most-used online tool, while 59% have become increasingly worried about cybersecurity. 

The Road Ahead   The solution does not lie in more of the same. It is time to transform the justice system, far beyond the visions of the "new" Legal Practice Act. The soaring operational costs of court services and the conservative spending on justice modernisation has severely impacted the system under the Covid-19 crisis.

Protectionist regulations can no longer keep the legal profession safe from the changing times. Now is the time for Legal Professionals, Regulatory Bodies, and the Judiciary to wake up to the necessities of innovation. South Africa does not have to start at zero and has taken some steps toward development. The best example of this is the successful implementation of the pilot phase of CaseLines at the end of 2019. CaseLines is an online court management application that allows judges, registrars, sheriffs and attorneys to safely share necessary documentation online, thereby eliminating the requirement of printing out papers and driving them to the courthouse.

Where these abilities would have been seen as "nice-to-haves" in a pre-Covid-19 era, it has become and more essential to eliminate unnecessary travel, printing, and physical contact.

We need to rethink the system and what is invested in it.

As legal-tech investments soar globally, the South African market is embarrassingly bare. We need new ideas and a new approach to solve the qualms too many South Africans face, and can’t afford. 

- Advocate Jackie Nagtegaal heads up LAW FOR ALL, is founder of the Futures Law Faculty and recognised as one of the most influential women in legal-tech around the globe by ILTA (International Legal Technology Association)


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