I BELIEVE that for any society to make sound economic progress, it must have a reliable legal system. Business and society thrive when the legal system is conducive for negotiating and concluding contracts, litigating, arbitrating and mediating contractual disputes. Digitalisation of the justice system is one of many ways through which the justice system can be more conducive to business.
By Cephas Mavhondo
The Oxford English Dictionary (OED) traces the first uses of the terms ‘digitisation’ and ‘digitalisation’ in conjunction with computers to the mid-1950s. In the OED, digitisation refers to “the action or process of digitising; the conversion of analogue data (especially in later use images, video, and text) into digital form.” Digitalisation, by contrast, refers to “the adoption or increase in use of digital or computer technology by an organisation, industry, country, etc.”
In short digitisation is thus the conversion of analog information to digital information while digitalisation is the strategy of adopting recent technologies in IT to make the most of the digital resources available in an enterprise or institution.
Prior to digital technology, electronic transmission was limited to analog technology, which conveys data as electronic signals of varying frequency or amplitude that are added to carrier waves of a given frequency. Broadcast and phone transmission has conventionally used analog technology. Digital technology is primarily used with new physical communications media, such as satellite and fiber optictransmission. A modem is used to convert the digital information in your computer to analog signals for your phone line and to convert analog phone signals to digital information for your computer.
In this article, I wish to briefly analyse the proposed laws namely the Deeds Registries Amendment Bill [HB 3/16] and Judicial Laws Amendment (Ease of Settling Commercial or Other Disputes) Bill [HB 4/16] in as far as digitalisation is concerned. The two Bills were gazetted on 26 June 2016.
Deeds Registries Amendment Bill
The Bill proposes the following:
Establishment of electronic registry
It is proposed that the Registrar of Deeds may establish an electronic registry. This means whatever is currently being done at Deeds Office through paper-based documents, will be done electronically. This means a conveyancer (a lawyer who is qualified to attend to, among other things, the transfer of title in immovable properties) will be able to sign a draft deed of transfer using digital signature and electronically send the electronic record of the draft deed to the Deeds Office. The Registrar will be able to electronically examine the draft deed. This will obviously lead to a quicker way of attending to a transfer of immovable property in Zimbabwe. What it means is instead of sending a messenger to lodge the draft deed at Deeds Office, the draft is electronically sent and in a split second, it will be before the Registrar. Generally, if it was requiring five days to register title, it will be now possible to have registration done in a day if not hours or minutes.
The electronic registry will also enable what will be called ‘registered users’ to access it for research and information gathering purposes. This means a registered user will be able, from his office, to ascertain the title registration details of a certain immovable property e.g the names of the owner and whether or not the property has a mortgage bond registered against it.
The electronic registry will be used by registered users only. Users who will not be registered users will continue using paper-based deeds registry. Registered users may be required to use the paper-based deeds registry concurrently to the extent that may be prescribed in Regulations.
Use of electronic data as evidence
In the event of a discrepancy between an electronic copy of document lodged with electronic registry and the material version of the same document that is lodged with paper based deeds registry, the paper-based document shall be deemed an authentic record of the document. This means if the electronic version of a title deed shows that transfer was registered on July 1 2017 but the paper-based version shows that transfer was registered on June 1 2017, it is June 1 2017 which will be taken as the date of registration. In my view when attending to registration of title in terms of the proposed amendment, it is therefore advisable for one to have both paper-based document and electronic document.
Electronic data will be admissible evidence and shall be given due evidential weight unless there are compelling reasons militating against that, considering the manner in which the data was generated, stated or communicated, the integrity of maintaining the data;originator identification and such other considerations.
The Registrar is required to enter into a user agreement with each registered user for purposes of regulating the use of electronic registry. The Bill proposes a template user agreement. The agreement will provide for: a mandatory electronic registry user agreement training course, interconnectivity requirements, confidentiality and security, integrity of electronic registry data, electronic signatures and passwords, prohibition of use of the electronic registry data for gain, term of agreement, breach and termination of the agreement among other things.
The Bill provides how the relationship between the register and a registered user will be regulated, eg with regards registration and suspension of registered user and cancellation of such registration, digital signatures and passwords, production and retention of records, sending and receipts of electronic communications, alternatives to electronic communications, unlawful use of computer systems and restrictions on disclosure of information.
In light of all this, the Bill will make the conveyancing and notarial practice work at Deeds Office more efficient.
This improves business generally. Mortgage bonds will be registered faster hence loans will be released faster. The electronic registry is optional, so if one is not a registered user, he can still use the paper-based Deeds Registry.
Judicial Laws Amendment Bill
Sittings of the Courts
This Bill seeks to amend Section 47 of the High Court Act such that the High Court or High Court judges will be enabled to hear civil matters through a ‘virtual sitting’. Virtual sitting entails the use of any electronic or other means of communication by which parties to legal proceedings may be heard and hear each other at the same time without being physically present together.
It is important to note that for a virtual sitting to take place, the parties to the proceedings must have agreed that the proceedings be in that form. In other words if one party is not competent in using virtual sitting technological equipment and is not amenable to a virtual sitting, the matter will be heard in open court or judge’s chambers, whichever the case may be. However, for virtual sittings to be applied, the High Court Rules have to be amended to that effect.
Furthermore, the Bill seeks to amend Section 56 of the High Court Act to the effect that the High Court Rules may provide for:
(a) The service of process by electronic means;
(b) The authentication of documents by electronic means, whether executed inside or outside Zimbabwe; and
(c) The digitisation of the records filed or lodged with the Registrar and the condition of access thereat or for the copying thereof for the purposes of any judicial proceedings.
The amendments that are being proposed to the High Court Act in terms of this Bill are also being proposed to the Magistrates’ Court Act in terms of the same Bill. These proposed amendments should be extended to the Companies and Intellectual Property Registries.
In the same vein it is noted that the Zimbabwean government is working on e-government service called Zimconnect. The website will offer e-services that include visa applications, company registration, corporate name change, deeds search, the processing of investment and mining licences as well as the licensing for local government services like operating a liquor store. This is a brilliant idea. This will make it quicker to do business in Zimbabwe and possibly do away with alleged corrupt acts and red tape by some state employees. However, the enabling laws are yet to be passed.
In conclusion, the digitalisation of the justice system has a myriad of advantages. Primarily, it will remove case backlogs, make the justice process swift and keep abreast with the fast-moving world of today. However this is a process that will take a bit of time and is costly to establish. It is indeed a matter of great success that the digitalisation of courts in Zimbabwe has already started. The daily “cause list” of High Court cases can now be found online together with the court judgments, allowing litigants and lawyers to access the requisite materials themselves. It will take time before the entire court system becomes digital. As such the lawyers, litigants and judges should adapt to the new system and provide constructive feedback for the improvement of the digital court system.
Mavhondo is a labour lawyer and partner at Mhishi Legal Practice. New Perspectives articles are co-ordinated by Lovemore Kadenge, President of the Zimbabwe Economics Society E-mail firstname.lastname@example.org and cell +263 772 382 852.