The recent decision by Durban High Court Judge Esther Steyn to allow the service of a notice on an individual via their Facebook page has been reported to be a first in South Africa – if not the continent. However, a local legal expert says it is important to keep the ruling in perspective and, while it sets a precedent for future possible application, it does not imply widespread and automatic application.
Following the exchange of pleadings in the matter of Cecil Schickerling vs Pieter Odendaal Kitchens, in which Cecil Schickerling is suing Pieter Odendaal for R126 700 over the sale of a woodworking machine, the trial was scheduled to be heard in court at the end of August.
However, when Odendaal’s legal representatives reportedly officially withdrew before the allocation of a specific trial date, all subsequent attempts to contact the client in accordance with the rules of the court proved unsuccessful.
This led to an attempt to locate Odendaal via Facebook and eventually the ruling that this channel could serve as a mechanism for the issuing of notice, in addition to the advertisement of notice via publication, as per requirements of the rules of the court.
Independent Online quoted Shickerling as saying that “service by Facebook by way of a message sent to an inbox is equivalent to email and would be the most likely way that a communication of the trial date and pre-trial procedures will come to the other party’s attention.”
According to the report advocate Mark Harcourt had said that while there had been vast changes in technology, courts were generally slow in adapting.
“However, legal articles seemed to indicate that courts overseas were increasingly willing to accept service through Facebook and other social networking platforms,” he said.
Experts in cyber-law and application have described the event as “an advance for South Africa”
Paul Jacobson, Director of web.tech.law and Web & Digital Media Lawyer, specialises in digital and social media related law.
According to Jacobson this specific incident is significant because it is an apparent openness on the part of the judiciary to recognise a variety of digital platforms and channels as appropriate in court proceedings, where the particular case merits it.
Jacobson points out that the court rules for the High Courts have changed since 27 July 2012, one of these being an extension of Chapter 3 of the Electronic Communications and Transactions Act to service of court documents on litigants by email or fax.
This Chapter deals with the legal requirements of data messages and communications using data messages.
Webtechlaw quotes an excerpt from this legislation:
“Legal “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.”
The ruling by Judge Steyn is significant to the country’s legal development says Jacobson.
“It extends the ECT Act’s recognition of digital messages to court processes and may even make some of the court procedures more effective because of the highly personal nature of these digital channels,” he comments.
Asked whether it is likely that social networking and social media will continue to influence the legal space inSouth Africa, Jacobson said “absolutely”.
“As more people use social services on the Web, it will have a very real impact on the legal sector simply because issues will increasingly arise in that digital context or in such a way that relates to these services. It’s unavoidable,” he added.
Tjerk Damstra, a Pretoria-based attorney, said that whilst he agreed with the decision by Judge Steyn and acknowledged the significance, it did not represent a blanket ruling on the conventions of the rules of the court, nor could Facebook or social networks be assumed to be a legitimate channel in South African courts.
“Legal representatives would, in future, still be required to approach the court to argue for the use of these mechanisms in the due process that is prescribed by the rules of the court. It cannot be assumed that these channels will always be recognised and accepted in every case,” he said.
According to a written explanation of her decision, reported online, Judge Steyn said that changes in communication technology have increased and it is not unreasonable to expect the law to recognise such changes and accommodate it.
Chris Tredger, Online Editor