SA needs to change its Discovery Rules……PHASE 3!!

Benjamin Disraeli said “Change is inevitable. Change is constant”, and Bill Clinton once quoted, “The price of doing the same old thing is far higher than the price of change”. I begin this post with these quotes because I want to tell you all that the Rules of Discovery in SA will change and that time has just got a little closer.

In recent weeks I have had absolutely excellent meetings with the Law Society of South Africa (LSSA) and with the Rules Board, both in Pretoria. The outcome of the former is that plans were made to progress this matter further and an Attorney, who is also a member of the LSSA, is now working with me to draft proposed amendments. Additionally there was unanimous agreement to meet with other members and committees to garner further support. As to the latter meeting, it is difficult to describe all that was discussed but the conclusion is that the Secretariat finds favour in my concept and will be speaking with their Committees and other members of the Board in order to gain support. Additionally, the Discovery Rules of other jurisdictions which I provided are being circulated within the Board to help people better understand the principle.

All in all, these meetings were nothing short of tremendous and positive steps forward. I feel so encouraged and totally justified with regard to the time and effort that I have spent thus far. Now that I have supplied an update, let us go backwards to see how these meetings occurred and remind ourselves why we need the change.

You may remember that Phase 2 was contained in my blog post in September 2015 and I am sure you know me by now in that I have not sat idly by on this topic since then! I have been continuing to learn more, speak to a lot of people, and done all that I can to find the correct path to deal with this. I have learned some patience since living in SA, and have always been determined to do this “the right way” even if it took longer - and by that I mean I wanted to enlist the support of the Law Society of South Africa (LSSA) and meet with the Rules Board face to face. Finding the right people with whom to engage was a challenge for me but during the last few weeks all has come together.

In all my discussions and meetings I have learned a lot and I can see the challenges a little more clearly. For example, I was reminded that, whilst countries such as New Zealand, Singapore, Hong Kong, Ireland etc. may be much smaller than SA , they are more advanced. I was also reminded that parts of SA are far from advanced, technologically speaking, with many sole practitioners in these parts operating their businesses without internet or computers. Equally it was pointed out to me that possibilities exist from, for example, the LSSA Development Fund to provide practical aid in these circumstances and an amendment of the Rules may well be a suitable catalyst.

I completely “buy in” to the notion of access to justice and I made the point at both meetings that my experience of eDiscovery technology is that it “levels the playing field” so that a small firm can compete with a larger one.

Let us just remind ourselves of some basic facts supporting the change. 

  • Latest statistics show that more than 95% of all business documents are created electronically
  • Over 100bn emails are sent and received every single day in the world 
  • The eDiscovery global market is estimated to be worth $14bn by 2020
  • Jurisdictions such as SA, without eDiscovery rules, is losing business to other countries, which could change, especially if, and when, POPI is also implemented
  • a whole new industry would be created in SA providing jobs and opportunities for investment within the country

A great deal of work is still to be done but now it is not just being done by me, and of course it will not happen overnight. I think it could still take a year but I see the implementation of POPI as  a more than useful guide because these two concepts compliment each other.  Once again I ask law firms, corporations and organisations, and service providers in SA to think deeply about this and offer support especially as all of you will benefit. Let us not waste all the effort thus far as we are now perfectly poised to move forward for the benefit of South Africa and those who work here.

So many of you have contacted me during the last year with supportive comments and advice and equally, I am sure that there are people who have simply felt that all of this would fade away and nothing would happen. To those doubters, I would paraphrase a well known football spectators chant, “Now you’re gonna believe me - we’re gonna change the Rules”!