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Service by Facebook

01 April 2013

Routledge Modise

Legal history was made in the KwaZulu-Natal High Court, Durban in August last year when Steyn J in CMC Woodworking Machinery (Ply) Limited v Pieter Odendaal Kitchen, allowed for service of notice of a trial date by way of a posting on the Defendant/Respondent's Facebook account.
 
Historically service of legal process and notices has always been by one of the recognised methods which included service by Sheriff, Registered Mail or Fax. Failure to use one of the recognised methods of service resulted in the service being defective and of no legal force.

The dawn of the computer age brought with it enormous changes to the communication technology including the introduction of: Short Message Service (SMS), electronic mail (email), Twitter and Facebook, among others. Despite these new methods, our courts have been reluctant to adapt to the changing times.

In 2011, however,  the legislature took the lead in adapting to the changing times through the introduction of the new Companies Act. s6(10) of the Act provides that if a notice is required or permitted to be given to any person, it is sufficient if the notice is transmitted electronically directly to that person, on condition that the notice can conveniently be printed by the recipient within a reasonable time and at a reasonable cost.

On July 27 2012 the Uniform Rules of Court were amended and Rule 4A was inserted after Rule 4. The new Rule provides that service of court notices and documents on any litigant may be effected by one or more ot the following methods to the address or addresses provided by the party:

  • by hand at the physical address for service provided;
  • by registered post to the postal address provided; or
  • by facsimile or electronic mail to the respective addresses provided.

The rule further provides that service need not be effected through the Sheriff.

It must be noted, however, that filing of original documents and notices with the registrar as referred to in the rule must not be done by way of facsimile or electronic mail. Service of original documents on the Court Registrar or Clerk must be done by hand or registered mail.

In the CMC Woodworking case, the plaintiff sued the defendant for R126 700, being the purchase price for a woodwork machine. The defendant entered an appearance to defend the action and pleadings were exchanged and closed.

Thereafter the matter was set down for trial by notice, which was served on the Defendant's erstwhile attorneys. Subsequently, the Defendant's attorneys withdrew as attorneys of record. After the withdrawal by the defendant's attorneys, the plaintiff tried to serve various notices on the defendant, without any success. The matter was set down for trial on 29 August 2012 and hence, the application for substituted service, particularly, service by Facebook.

In granting the order permitting service by Facebook, Steyn J considered the history of substituted service and consulted, inter alia, Farlam et al in Erasmus Superior Court Practice This described substituted service as service where the defendant is believed to be in the Republic but one of the normal traditional forms of service cannot be effected for various reasons, including the situation where the defendant is evading service thereof. The court then gives directions authorising substituted service.

The judgement in CMC Woodworking is crucial and is to be welcomed since it serves as a reminder to defendants considering evading service of court process and notices, that the courts will not sit idly by and permit the abuse or frustration of the legal process.

The team

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