19 Mar 2013

International Transport, Trade & Energy, Finally - Recognition of the Electronic Age

Practice Area(s): Shipping & Logistics |

In court proceedings before the South African courts in exercise of their parochial (non-Admiralty) jurisdiction, the practice rules tend to be a lot more rigid and in some respects archaic, than in Admiralty. It is therefore interesting that in a recent reported decision of the High Court in Durban, exercising parochial jurisdiction, the judge was persuaded to follow some procedures on electronic service of proceedings, apparently now followed by more progressive jurisdictions abroad. 

The KZN High Court's Judge Esther Steyn’s made the landmark ruling very recently allowing a court notice of set down of the pre-trial conference and trial itself, to be served on a Defendant (who was clearly avoiding service by traditional means) via Facebook. The Judge said the courts have to understand and take notice of changing social media platforms. The ruling, which has been hailed as progressive and ‘in keeping with the times’, pertained to an action for money owing from the sale of a woodworking machine.  

The Judge in her reasons said ‘Changes in communication technology have increased exponentially; therefore it is not unreasonable to expect the law to recognise such changes and accommodate it’. The Judge did point to the fact that there had been a recent amendment to the Uniform Rules of a Court which provides for service by way of electronic mail, registered post and fax, which facilitated the expansion of service methods to be approved by the court, but which however are still methods where personal service on the defendant can be proven.

A notice published on the defendants Facebook page however, simply assumes that he will see it, which in this instance the judge was satisfied he would, given that the evidence was that he regularly updated the page and that the plaintiff recognised and identified the defendant in recent group social photographs posted on the page, as being the defendant to whom the machine had been sold.

It is likely that the judgment will be relied on as authority for service of Admiralty proceedings by publication of court notices and even summonses commencing action, on Facebook, as the Admiralty court has for many years been more informal on service procedures anyway, permitted substituted service by advertising in a newspaper, by email and by fax.