February 28, 2017

Facebook Messenger: You’ve been served!

Almie Fourie

Some of you may not know this, but South African law joined the social media revolution as far back 2012!

Amendments to the  High Court Rules during July 2012 brought about an extension to Chapter 3 of the Electronic Communications and Transactions Act (the ECTA), providing for service of court documents on litigants by way of e-mail or telefax.

This chapter of the ECTA deals specifically with the legal requirements of data messages and communications using data messages. As such, litigants are now allowed to serve court documents by way of e-mail or telefax in an attempt to ensure that all parties concerned are aware of every stage of the court process.

During August 2012, Judge Ester Steyn in the judgment of CMC Woodworking Machinery (Pty) Ltd v Peter Odendaal Kitchens allowed service of a legal notice on the Defendant via Facebook, and reiterated this notion by her statement that-:

  • there would be no blanket use of Facebook to issue Summons;
  • this way of service would be considered on a case-by-case basis only; and
  • only in the event that the court was satisfied that the party to be served will indeed become aware of the stage of the court process;

Judge Steyn added that changes in communication technology have increased and it is not unreasonable to expect the law to recognise and accommodate such changes.

The trial in this specific matter was scheduled to be heard in court at the end of August 2012. However, as a result of withdrawal by the Defendant’s attorneys as attorneys of record, all attempts at contacting the Defendant through conventional measures provided for in the Rules of Court proved futile, leaving the Plaintiff’s attorneys with no alternative but to approach the Court with the rare request of having legal notices served on the Defendant via Facebook.

The Plaintiff’s attorneys argued that “service via Facebook by way of a message sent to the account holder’s inbox would be equivalent to an email, and would be the most likely way that communication of the trial date and pre-trial procedures would come to the other party’s attention.”

Judge Steyn pointed out that different methods of substituted service are allowed when one party is unable to trace or communicate with another and found that in this particular case it is apparent that a private message via a social media network falls in the scope of Rule 4(2) of the Uniform Rules of Court and should therefore be allowed as a valid form of substituted service.

Rest assured however that in no way will you receive a Summons or legal notice every time you log on to Facebook. Anyone wanting to use this method of service will first have to approach a court to obtain permission to do so and more importantly, such person will have to provide the court with a justifiable reason for this rare, but valid, request.

This ruling was widely described as “an advance for South Africa”, and it becoming more and more evident, without a doubt, that social networking, and social media specifically, will continue to influence our legal system in the years to come.

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