Category Archives: Electronic Communication

DURBAN HIGH COURT “LIKE” SERVICE VIA FACEBOOK

Facebook can be described as a social network that provides people with the opportunity to connect and communicate with friends, family, acquaintances, colleagues and even strangers, around the world. The success and popularity of this social network is not in question when looking at their more than 9 billion users, of which 900 million check or update their account at least once a month. 

Despite the general criticism against South African courts for being sceptical and sometimes slow to accommodate developments of this kind, widespread controversy occurred when a Durban High Court judge, Judge Ester Steyn, welcomed the service of a court process on the defendant’s Facebook social network page.

This urgent ex parte judgement followed after the defendant’s attorney of record withdrew  in the matter of CMC Woodworking Machinery (Pty) Ltd vs Pieter Odendaal Kitchens and failed  to provide the plaintiff’s attorneys with an alternative address where notice to the counterparties could be served. At this stage of the process, pleadings had already been exchanged on both sides and the parties awaited the allocation of a trial date. Needless to say, the plaintiff’s attorneys were in the position where they had no alternative address to serve the court documents on the defendant. All subsequent attempts to contact the defendant in accordance with the rules of court, proved unsuccessful. Consequently, the plaintiff (applicant) brought an urgent application for substituted service on the defendant’s personal Facebook page.

In view of the application, Judge Steyn placed a great deal of emphasis on the recent amendment to the Uniform Court Rules, and more specifically Rule 4A, in which provisions of the Electronic Communication Act 25 of 2005 were incorporated. This rule allows litigants to serve courtdocuments by e-mail or fax and was specifically created to ensure that the court processes are brought to the attention of the relevant party.

Furthermore, these rules make provision for the appropriate procedure to be followed in the event of unsuccessful service in the ordinary course of business. This process is called substituted service. The party who seeks to serve the court document must apply to the court for substituted service and only after the court is satisfied that the particular method of service will be adequate and that the traditional methods of service were not effective, will a court grant leave for this type of service.

The judges in the courts will take the following into consideration:

  • Nature and extent of the claim
  • Grounds upon which the claim is based
  • Grounds upon which the court has jurisdiction
  • Method of service
  • Last known location
  • That the applicant has tried the usual methods and has tried to locate the respondent without success

Although Facebook is primarily used as a social network, according to Judge Steyn it is fair to draw the conclusion that this particular network is used for other useful functions such as tracking individuals as well as to obtain essential information. Judge Steyn emphasised that each application must be decided on its own merits and on the type of document that needs to be served on the party concerned.

Leave was accordingly granted to the applicant for substituted service using a personal Facebook message. In addition, to promote legal certainty, the judge ordered that the notice be published in a local newspaper should the defendant, for some reason, not have access to any electronic communication devices.

Service using a social media website like Facebook has a number of advantages. Many Facebook users probably spend more time on Facebook than reading a newspaper. A notification via Facebook is therefore more targeted and would be more likely to reach a person’s attention than an ad in the legal classifieds. This order is widely described as a ground-breaking judgement in South-Africa, and Facebook users can click “like” with satisfaction.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.