KZN court rules 80-year-old can testify via video link from Montenegro

It has been 17 years since a Yugoslavian ship's engineer Vojislav Krivokapic died after a vehicle in which he was travelling crashed into a gantry crane in Durban’s harbour and sank into the bay.

While Transnet conceded liability for the accident in 2010, and agreed to pay 70% of the proven damages, Krivokapic’s mother Milicia, who turns 82 this year, was unable to proceed with her claim in the KwaZulu-Natal High Court in Durban because she was too old and ill to travel to South Africa to give evidence.

Now Judge Yvonne Mbatha has changed that.

In spite of a lack of legislation allowing for "video link" testimony, Judge Mbatha this week ruled that the elderly woman be allowed to testify via live link from what is now known as Montenegro.

Krivokapic says her son, who worked on the MSC Viviana, was supporting her by giving her $1 000 a month. She is seeking this and other compensation.

In her application, her lawyers argued that, not only can she not travel long distance, but that she also could not afford to make the trip.

But Transnet’s lawyers argued that the rules of court did not allow for her to testify from overseas.

They also argued that the judge would not be able to assess her credibility and demeanour.

In her ruling, the judge said evidence through a video link and other social media mechanisms was still a novelty in South Africa, except for limited use in criminal matters.

'Our courts are lagging behind in this sphere'

"Technology is, at this stage of our lives, so advanced to a point that direct evidence can be taken from a witness in another country and cross-examination can take place whilst the witness is visible to all.

"But our laws do not cater for this.

"The High Court does not have rules that regulate this, but it has powers to regulate its own processes in the interests of justice.

"And South Africa prides itself in the rights enshrined in the Constitution.

"The legal barriers created by the lack of rules, cannot override the right to access to justice. Video link conferencing extends and expands access to justice. Technology with the necessary safeguards enhances such a right enshrined in the Constitution,” Judge Mbatha said.

She said criminal courts received evidence electronically when vulnerable children gave evidence through the closed circuit camera television system.

In the same light, Milicia Krivokapic was no longer physically fit to travel at her age and suffered from serious ill health.

"Our courts are lagging behind in this sphere of technology and we require a legal framework for video link conferences, as is the case in foreign jurisdictions," Judge Mbatha said.

She ordered that the matter be given preference on the court roll.