One of the most fundamental principles of our justice system is that every party with a legitimate interest in a matter should be afforded the opportunity to be heard. This right to basic fairness in the judicial process is encapsulated in the Latin maxim “audi alteram partem” which translated means “hear the other side”. This means is that no-one should be judged or ruled against in a matter where they have not been able to defend themselves or have their side of the story heard.
This issue develops further when legal actions commence, be it criminal or civil. It stands to reason that a party can only exercise their right to be heard / defend themselves if they are aware of proceedings affecting their rights and where and when this is to occur. The alerting of all relevant parties to a matter becomes fundamental to the administration of justice. The Courts generally do not permit matters to proceed unless they are assured that all parties have been properly informed or “served” with the court papers.
In terms of the prevailing court rules, service has to be effected personally (i.e. a sheriff should hand over the court documents to the relevant person/s whose rights may potentially be affected, explain what the documents mean and have them sign a receipt) at that person’s residence or workplace. This is the ideal method of service because it means that the person/s with an interest in the matter is/are personally informed of the proceedings against them. In practice it is not always possible to effect personal service as the relevant parties are often not easy to locate and sometimes do not wish to be located!
To manage around this reality the law permits alternative methods of service such as substituted service (whereby another person accepts the documents on behalf of the actual person is required to be served), service by registered post or simply by affixing the court papers to the door of the person’s residence, amongst others.
Despite the varied forms of permitted service it is often difficult to serve papers on a person who does not want to be located. This was this case in the landmark decision in CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens. Here the applicant (CMC) sold woodworking machinery to the respondent (Odendaal) who allegedly failed to pay. The applicant then proceeded to sue the respondent and pleadings were accordingly exchanged. After the matter was set down for hearing the respondent’s attorneys withdrew from the case and no new attorneys were appointed. The respondent provided no address for service to his creditors. As a final resort the applicant’s attorneys sent a message advising the respondent of the proceedings against him via a Facebook message. The Court then ruled that a private message sent to the debtor’s personal Facebook account met the requirements of service as the creditor had attempted and failed to serve using all other conventional means of service.
The two key issues that emerge here are that, firstly, all other traditional means of service were attempted before the Facebook method and, secondly, that the applicant here managed to persuade the Court that the Facebook method would most likely result in the notice coming to the attention of the respondent. When considering the efficacy of the Facebook method the court attempted to understand the operation of the popular social media site. It was brought to the Court’s attention that there were recent photographs of the respondent uploaded onto his profile which indicated that he was active on the site and therefore service would be effective. This type of investigation by the Court is troublesome to say the least for it fails to take into consideration several factors which are relevant in the way social media sites function and indeed the internet as a whole. The fact that recent photographs were uploaded onto a site does not necessarily indicate that any particular person has been active on a site. Photographs may be uploaded by others and a particular person merely “tagged” by the uploader, a person’s account may have been accessed by another (with or without permission), a person may have their social media presence managed by a third party (this is often the case with companies or publicity conscience individuals).
The Courts are often reluctant to adapt to technological changes, preferring to err on the side of caution so as to ensure all possible ramifications are considered before implementing any changes. Whether this decision was made as prudently is debatable at this stage. What is desirable is that the regulations pertaining hereto are thoroughly debated and examined prior to being enforced in our courts.
While the Courts willingness to adapt its rules to include certain provisions of the Electronic Communications and Transactions Act, 25 of 2002 (the ECT Act which, inter alia, provides for the facilitation and regulation of electronic communications and transactions) is to be applauded, at the same time greater clarification is required as to the exact parameters within which these will be applied. The most rational approach would be to more fully align the provisions of the ECT Act with the rules of Court as well as the other areas mentioned such as commercial law and deceased estates so as to create uniformity and legal certainty within which one can operate.
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