Serving court process via Facebook

I am working on a case for a client at the moment in which we can’t seem to pin the defendant down to serve the summons on him. This presents a challenge because without being able to serve the summons, we simply can’t launch proceedings to recover amounts the defendant owes my client. Our court rules specify how court process must be served on a party for service to be valid. In the Uniform Rules of Court which regulate the conduct of the proceedings in various High Courts the relevant rules are rules 4 and 5. Rule 4 is the main rule and sets out the requirements for ordinary service of court process on defendants and respondents. For the most part these requirements are met when the court process is served by a sheriff of the court (also referred to as a court messenger) in the following manner –

  • By delivering a copy thereof to the said person personally: Provided that where such person is a minor or a person under legal disability, service shall be effected upon the guardian, tutor, curator or the like of such minor or person under disability;
  • by leaving a copy thereof at the place of residence or business of the said person, guardian, tutor, curator or the like with the person apparently in charge of the premises at the time of delivery, being a person apparently not less than sixteen years of age. For the purposes of this paragraph when a building, other than an hotel, boarding-house, hostel or similar residential building, is occupied by more than one person or family, ‘residence’ or ‘place of business’ means that portion of the building occupied by the person upon whom service is to be effected;
    by delivering a copy thereof at the place of employment of the said person, guardian, tutor, curator or the like to some person apparently not less than sixteen years of age and apparently in authority over him;
  • if the person so to be served has chosen a domicilium citandi, by delivering or leaving a copy thereof at the domicilium so chosen;
  • in the case of a corporation or company, by delivering a copy to a responsible employee thereof at its registered office or its principal place of business within the court’s jurisdiction, or if there be no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in any manner provided by law;
  • by delivering a copy thereof to any agent who is duly authorized in writing to accept service on behalf of the person upon whom service is to be effected;
  • where any partnership, firm or voluntary association is to be served, service shall be effected in the manner referred to in paragraph (ii) at the place of business of such partnership, firm or voluntary association and if such partnership, firm or voluntary association has no place of business, service shall be effected on a partner, the proprietor or the chairman or secretary of the committee or other managing body of such association, as the case may be, in one of the manners set forth in this rule;
  • where a local authority or statutory body is to be served, service shall be effected by delivering a copy to the town clerk or assistant town clerk or mayor of such local authority or to the secretary or similar officer or member of the board or committee of such body, or in any manner provided by law; or
  • if two or more persons are sued in their joint capacity as trustees, liquidators, executors, administrators, curators or guardians, or in any other joint representative capacity, service shall be effected upon each of them in any manner set forth in this rule.

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:

  1. nature and extent of claim;
  2. grounds upon which the claim is based;
  3. grounds upon which the court has jurisdiction;
  4. method of service;
  5. last known location;
  6. 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.

I’ve been thinking about using social media services to serve court process on absent defendants and respondents for a little while now, certainly since I read about how Australian and New Zealand courts started allowing substituted service using Facebook. Courts have been amenable to service by email as far back as 2005 and while I am not aware of any specific cases in South Africa where this has occurred, it is bound to happen soon enough.

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.

Where this becomes really interesting is where you start considering extending substituted service to Twitter. Twitter is said to be capable of becoming a sort of global phonebook (a similar thing was said about Facebook which, at roughly 450 million users and growing, seems more like to succeed). I’m not too sure how this would work in practice but its success may depend more on the notification’s publicity. Unlike Facebook, you can’t message a Twitter user directly unless they are following you.

We may find that as the social Web becomes more pervasive, it also becomes the platform of choice for many of our legal processes. There are certainly challenges which must be overcome and these include identity verification, service reliability and so on but it is worth considering these options if you know the party you are targeting uses these services.

Published by Paul Jacobson

Enthusiast, writer, Happiness Engineer at @automattic. I take photos too. Passionate about my wife, Gina and #proudDad.

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