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. Digitalization of the justice system is one of many ways through which the justice system can be more conducive to business.
The Oxford English Dictionary (OED) traces the first uses of the
terms ‘digitization’ and ‘digitalization’ in conjunction with computers to the
mid-1950s. In the OED, digitization refers to “the action or process of
digitizing; the conversion of analogue data (esp. in later use images, video,
and text) into digital form.” Digitalization, by contrast, refers to “the
adoption or increase in use of digital or computer technology by an
organization, industry, country, etc.”
In short digitization is thus the conversion of analog
information to digital information while digitalization 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 optic transmission. 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 analyze 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 digitalization 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 of a second, it will be before the Registrar. Generally, if it was requiring five (5) 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 generally 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 1
July 2017 but the paper-based version shows that transfer was registered on 1
June 2017, it is 1 June 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.
User
Agreements
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.
Miscellaneous
Provisions
The Bill provides how
the relationship between the Register and a registered user will be regulated,
e.g. 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.
I 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.
Court
Rules
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 digitization 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 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.
I conclusion, the digitalization 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 digitalization 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.
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