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.

THE CONSUMER’S RIGHTS UNDER THE CONSUMER PROTECTION ACT

Can a consumer take you, the service provider, to court because they did not understand some of the terms and conditions of your signed contract? Beware, the answer is Yes!

From April 2011 the Consumer Protection Act came into full effect with the result that it is now against the law to use difficult-to-understand language in any business document or contract.

Business usually comes with some kind of paperwork, whether it’s a contract, a letter of agreement or even an instruction booklet. These vital documents are often written in language that is hard to understand for the average consumer, which is why there are specific Plain Language regulations in The Consumer Protection Act to prevent consumers signing documents they do not understand.

Protecting the consumer

The Act’s express purpose is to make sure consumers are not treated unfairly – intentionally or not. This means that using plain language is more crucial than ever. From now on, using obscure and confusing wording, especially in binding contracts, is not allowed. Quite simply, it’s illegal!

Too many consumers have landed in big trouble, especially financial trouble, because they haven’t understood what they’ve signed. Sometimes contracts are written in bloated, bureaucratic jargon just because that’s the way it has always been, or because the people writing the contracts don’t know any other way to do it. Often, though, unscrupulous businesses have used complicated language on purpose, as a way to trick consumers into paying for something they can’t afford, to sign away their rights, or to agree to unfair terms and conditions.

Defining plain language

The Consumer Protection Act defines plain language in Part D, Section 22 as follows:

“For the purposes of this Act, a notice, document or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance, and import of the document without undue effort, having regard to:

  1. The context, comprehensiveness and consistency of the notice, document or visual representation;
  2. The organisation, form and style of the notice, document or visual representation;
  3. The vocabulary, usage and sentence structure of the notice, document or visual representation; and
  4. The use of any illustrations, examples, headings, or other aids to reading and understanding.”

This means that one won’t be permitted to word things so widely that they can be understood in several ways. The Act states that if there is any doubt about the meaning of certain words or terms and conditions, the benefit will go to the consumer.

Even advertising and marketing may no longer contain any ambiguity. Advertisements won’t be allowed to exaggerate and they will have to be easy to understand, fair and honest. The Act states that service providers will have to spell out everything in words that consumers can understand, alternatively the consumers have the right to full disclosure and information in plain and understandable language.

So, don’t delay. If you have a business document or contract that has been used for generations you might have to take a second look at it to edit or reword it so that it complies with the Consumer Protection Act.

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.

RULE 43 APPLICATIONS

Divorce proceedings can take years to come to conclusion and this leaves certain issues unresolved until such a time.

A Rule 43 Application can be used to find a comparatively speedy interim solution to important issues such as maintenance and access to minor children.

If you are involved in an opposed divorce action you may wait years before getting your final divorce order. This means that your legal costs may end up sky high and your spouse may not be contributing to living costs of yourself or your children. There may also be issues with regard to custody of minor children or access to minor children that will eventually be resolved at the completion of the divorce proceedings for which you need to make interim arrangements. This is particularly helpful where one parent is preventing the other from having access to the minor children born out of the relationship. Luckily there is a way of dealing with these issues while you are still engaged in divorce proceedings.

A Rule 43 Application allows you to claim for a contribution towards the costs of a pending matrimonial action, for maintenance pendente lite (awaiting litigation), for interim custody of any child and for interim access to any child. [1] In order to do this you need to deliver a sworn statement which sets out what you are claiming for as well as the grounds upon which you are relying. A notice must also be attached to this sworn statement which you’ll find in the Uniform Rules of Court. These documents will usually be drafted by your attorneys after having consulted with you. Remember that a sworn statement must be signed before a commissioner of oaths. Make sure to read through this document thoroughly to make sure that it is complete and accurate before you sign it.[2]

A Rule 43 Application must be served by the sheriff and the Respondent must deliver a sworn reply to the sworn statement within 10 court days of receiving it. If the Respondent does not reply then he shall be barred from doing so. If the Respondent does reply then the Registrar must as soon as possible thereafter bring the matter before the High Court for summary hearing on 10 days notice to the parties.[3]

The High Court may then make an order that it deems as just or it may dismiss the Application if they can see from the sworn statements that the claims have no proper grounds or for any other reason that they deem to be just and fair. The court also has the power to change its decision through the same procedure where there has been a material change in the circumstances of either party or the circumstances of a child takes place or where the contribution towards costs proves to be inadequate.[4]

If you are involved in opposed Divorce proceedings and are struggling with any of the abovementioned issues then consider mentioning your interest in making an Application to the High Court in terms of Rule 43 to your legal representation if this remedy hasn’t been brought to your attention yet. It is an effective remedy to getting relief in what can be a long and drawn out process and decreases the chances of one party being prejudiced where they do not have the finances to fund the legal costs of the divorce proceedings.

References

  • Rule 43 of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[1] Rule 43(1)(a) – (c) of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[2] Rule 43(2) of the Uniform Rules of Court

[3] Rule 43(3) & (4) of the Uniform Rules of Court

[4] Rule 43(5) & (6) of the Uniform Rules of Court

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.

POPI ACT

The Protection of Personal Information Bill, which will soon become law and is commonly referred to as POPI, seeks to regulate the processing of personal information.

It must be read with other relevant statutes such as:

  1. Electronic Communications and Transactions Act 25 of 2002 (‘ECT’)
  2. Promotion of Access to Information Act 2 of 2002 (‘PAIA’)
  3. Regulation of Interception of Communications Act 70 of 2002 (‘RICA’)
  4. Consumer Protection Act 68 of 2008 (‘CPA’)

Personal information of both employees and clients is – given e-commerce and technology used in connecting businesses – becoming instantly accessible to third parties.

POPI aims to introduce certain protection principles to establish minimum requirements for the processing of personal information. There are eight information protection principles contained in chapter 3 of the Bill, namely:

Accountability; Processing limitation; Purpose specification; Further processing limitation; Information quality; Openness; Security safeguards; Data subject participation. 

The intention is to promote transparency with regard to what information is collected and how it is to be processed. This might be the end of all those unsolicited sales calls and spam we receive on a daily basis. 

Processing means broadly anything done with personal information, including collection, usage, storage, dissemination, modification or destruction (whether such processing is automated or not).

POPI compliance involves capturing the minimum required data, ensuring accuracy, and removing data that is no longer required. These measures are likely to improve the overall reliability of the organisation’s databases.

Compliance further demands identifying personal information and taking reasonable measures to protect the data, like tracking the workflow of client documents and ensuring that vital information is not misplaced or falls into the wrong hands.

The POPI Act is very much in line with similar legislation that exists in about 70 to 80 other countries, and South Africa is finally set to fall in line with international standards for the collection and handling of personal information.

The Act does not only protect the way in which information is used and/or re-used by the recipients of the information, but the party gathering the information also has the responsibility to ensure it is accurate, current and not misleading. Personal Information may only be processed if voluntary, specific and informed consent is obtained.

An Information Protection Regulator will be appointed who will have broad powers and may consider the public interest as opposed to an individual’s rights to privacy.

There are, however, cases where POPI does not apply. Section 4 Exclusions include:

  1. purely household or personal activity;
  2. sufficiently de-identified information;
  3. some state functions including criminal prosecutions, national security etc.;
  4. journalism under a code of ethics;
  5. judiciary functions etc.

Reference:

  1. http://www.popi-compliance.co.za/
  2. http://www.saaci.co.za/

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.