As in other jurisdictions worldwide, the KwaZulu-Natal High Court has allowed service of a notice on a man via his Facebook page. He is a defendant in a matter set down for trial. Trisha Ramnarain Sarkas looks at the case from a legal perspective.
Neither the sheriff nor three tracing agents were able to find him and notice of the trial date and pre-trial procedures could not be communicated to him.
He was found via a search on Facebook and application was made to allow for giving him notice via Facebook. In addition to allowing a message to be placed on Facebook, the court also ordered that the notice be in a local newspaper.
The Australian Supreme Court ordered that notice of a judgment granted in the absence of the defendant could be sent to the defendant by sending a message to their Facebook page. Lawyers convinced the court that the Facebook profiles identified were those of the defendants because the dates of birth and email addresses were the same as those of the defendants, and the defendants were on one another’s ‘friends lists’. Australian courts have also allowed service of documents by email and by text message to a mobile phone.
In South Africa the granting of similar orders is allowed as a substituted form of service. According to the court rules, substituted service is ordered when the defendant is believed to be in the Republic but one of the normal forms of delivery of the documents set out in the rules cannot be done, or when personal service is required and cannot be effected. The court may order any manner of service if it can be shown that there is some reasonable likelihood that the form of service suggested will come to the knowledge of the defendant.
In fact, in line with advances in technology and their impact on the manner in which we communicate, the South African court rules have been amended to provide for service by e-mail.
The Electronic Communications and Transactions Act also applies to any electronic transaction or data message. Its objects include enabling electronic communications and transactions in the public interest, and promoting legal certainty and confidence in electronic communications and transactions.
Countries such as Australia, Canada, United States of America and India all have similar sending and receiving provisions and similarly defined key terms, to assist in the determination of pivotal questions such as establishing the delivery of electronic communications.
Considering that Facebook has attracted over 900 million users worldwide since its inception in 2004, the possibility of giving notice by Facebook is worth bearing in mind as we create and manage our digital identities.
Trisha Ramnarain Sarkas is an associate at Norton Rose SA