This legal alert highlights the law regulating the use of audio-visual technology in proceedings before the High Court. The emphasis on the use of audio-visual technology has been a response to the need for the continued conduct of court proceedings during the prevalence of COVID-19. It is important to note that the giving of evidence via audio-visual technology has been guaranteed by law from as far back as 2012 when Order XXXII Rule 2 (8) of the High Court (Amendment) Rules, 2012 (“Rule 2(8)”) was enacted.

25 March 22

Key Considerations in Allowing an Application to Give Audio-Visual Evidence

Rule 2(8) provides that the court may receive oral evidence from a source within and outside Zambia via audio-visual technology and that such evidence is to be recorded in the same manner as if the witness was physically present in court. The use of audio-visual technology has been affirmed by the Court of Appeal in the case of Sichula v Perry (Appeal No 200 of 2021) (unreported) which recognised that Rule 2(8) expressly provides for the use of a video link.
In deciding whether or not to grant an application to give evidence using audio-visual technology, the court is to take into consideration several factors including time, cost and convenience.
The court is also called upon to weigh conflicting interests and determine whether it is in the interests of justice to grant such an order.

Food for Thought

A literal reading of Rule 2(8) reveals that the use of audio-visual technology is only limited to the giving of oral evidence and not the conduct of the entire matter. Arguably, this is circumvented by the COVID-19 Guidelines which same are also ambiguous. Firstly and importantly, they do not provide guidance on how virtual hearings ought to be conducted and secondly, they do not state whether a Judge seized with the conduct of a matter can so constitute himself at a venue other than the court, that is, at the Judge’s personal residence.

Despite the fact that using audio-visual technology ensures that matters are timeously heard and determined, it is not without its faults. Primary is the question of the weight to be given to audio-visual evidence. This is because the court does not have as good an opportunity to assess the demeanour of the witness as it does in person. In addition, the court cannot tell for a fact whether the witness is reading from a document during his/her testimony or being guided by a third person who is not visible to the court.

Another issue worth considering is whether permission to use audio-visual technology means attendance of proceedings may be through the use of the same technology. Although the use of audio-visual technology may seem like the answer to the need for continued adjudication during the prevalence of COVID-19 in Zambia, are we applying the technology correctly?

Should you have any questions on this legal alert, please do not hesitate to contact: Mulopa Ndalameta.

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