Judge Esther Steyn, sitting in the Durban High Court, made history yesterday when she approved service of court documents on Peter Odendaal, a defendant in a trial action in that court. It appears from a report on IOL that Mr Odendaal’s attorneys withdrew from the matter and did not leave a current address for Mr Odendaal for further service. What is supposed to happen is that the other parties to the proceedings should be advised where they can serve further court documents on a party whose attorneys have withdrawn from the case.
This left the plaintiff, CMC Woodworking Machine (Pty) Ltd, in a difficult position. It had no apparent way of serving further court documents on Mr Odendaal who appeared to be evading service in the hopes that this would scuttle the litigation against him. I wrote about the possibility of courts allowing court documents to be served on litigants using social services like Facebook in a post titled “Serving court process via Facebook” about 2 years ago. If you are interested in the procedural issues involved, take a look at that post.
What has changed since then is that the court rules for the High Courts have been changed with effect from 27 July 2012. One of the changes is to extend Chapter 3 of the Electronic Communications and Transactions Act to service of court documents on litigants by email or fax. Chapter 3 deals with the legal requirements of data messages and communications using data messages. Section 11 states the following:
“Legal recognition of data messages
11. (1) Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message.
(2) Information is not without legal force and effect merely on the grounds that it is not contained in the data message purporting to give rise to such legal force and effect, but is merely referred to in such data message.
(3) Information incorporated into an agreement and that is not in the public domain is regarded as having been incorporated into a data message if such information is –
(a) referred to in a way in which a reasonable person would have noticed the reference thereto and incorporation thereof; and
(b) accessible in a form in which it may be read, stored and retrieved by the other party, whether electronically or as a computer printout as long as such information is reasonably capable of being reduced to electronic form by the party incorporating it.”
A “data message”, in turn, is defined pretty broadly and “means data generated. sent. received or stored by electronic means”. It includes voice recordings where they are used in an automated transaction and a “stored object”. When it comes to serving court documents on litigants, I’ll quote from my previous post:
As you can see, these rules are pretty specific and are designed to ensure that court process reaches the relevant party’s attention while, at the same time, not making it too difficult for the party bringing the proceedings to actually serve the court process. On a related point, some of my clients sometimes find themselves on the receiving end of court process and ask whether they should accept the documents from the sheriff. I usually advise them to accept the documents because it is generally far more beneficial to receive the documents and be in a position to deal with them than have them served on some address or in some form that doesn’t being them to your attention. The result of not being made aware of service can be default judgment.
The rules also deal with the procedure to be followed if service can’t be achieved in the ordinary course. This alternate process is called substituted service. The party trying to serve the court process must obtain the court’s permission to serve court process in some other way and this means bringing an application to the court concerned in which the applicant must make a series of allegations. These allegations are usually the following:
- nature and extent of 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 but without success.
If the court is satisfied that the applicant has done what it can to locate the other party and serve the court process on it, the court can permit the applicant to serve the court process using another medium. These alternatives often include the Government Gazette, local papers or even by delivering the court process to family members. These methods can also include some form of digital notification or delivery if the court is satisfied they would be effective and appropriate.
Given one of the rationales for the rules regarding service being to bring court documents to the other party’s attention and the amendments to the rules to incorporate recognition of data messages, extending the rules to service using Facebook makes a lot of sense:
Service using a social media service like Facebook has a number of advantages. For one thing, many Facebook users probably spend more time in Facebook than reading newspapers or checking the Government Gazette for ads mentioning them. A notification via Facebook is very targeted (well, assuming you have the right Facebook profile which is maintained by the person you seek) and perhaps more likely to reach that person’s attention than an ad in the legal classifieds. Another benefit to using Facebook is that there is a good chance a person with decent access to the Internet has a Facebook account.
Service using Facebook could involve sending a message to the person with a link to the court papers (Facebook messaging doesn’t really allow for attachments). Service using Facebook should probably be done in conjunction with other service options like email, newspaper ads and so on but it could be the most effective in the right circumstances.
In this particular case, Judge Steyn also ordered a publication in the local newspaper, which is common practice for substituted service.
I look forward to Judge Steyn’s reasoning on Friday and wouldn’t be surprised if she follows a similar thought process. Whatever her reasoning, this is an important decision and we can look forward to more innovations in our court procedure going forward.
Update (2012-08-06): Gavin McLaughlan at Randles Attorneys very kindly sent me a copy of Judge Steyn’s judgment this morning. It makes for interesting reading and the judge seems to follow similar reasoning to the reasoning I outlined in this and my previous post. I recorded a quick explanation of the judgment here:
I also published the judgment on Scribd and you can read it below: