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[2012] ZAKZDHC 104
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CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens (2012 (5) SA 604 (KZD); [2012] 4 All SA 195 (KZD)) [2012] ZAKZDHC 104; [2012] ZAKZDHC 44 (3 August 2012)
REPORTABLE
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case No: 6846/2006
In the matter between
CMC WOODWORKING
MACHINERY (PTY) LTD
…................
Applicant
and
PIETER ODENDAAL
KITCHENS
…......................................
Respondent
JUDGMENT
Delivered on: 3 August
2012
STEYN J
[1] In 1947 courts
considered it appropriate to order that substituted service be
effected by affixing a notice on the door of a
court building.
1
Much, however, has
happened since 1947. World War II came to an end and wireless and
telephone technology developed to the extent
that the telex was
introduced. The fax machine followed thereafter as well as cell phone
communication. Computers entered every
house and office to the extent
that most courts depend on electronic equipment. For example
proceedings are no longer manually
recorded but by a trained
stenographer who records them digitally.
[2] Changes in the
technology of communication have increased exponentially and it is
therefore not unreasonable to expect the law
to recognise such
changes and accommodate it. Courts, however, have been somewhat
hesitant to acknowledge and adapt to all the
aforesaid changes and
this should be understood in the context that courts adhere to
established procedures in order to promote
legal certainty and
justice. South Africa’s legislature moved swiftly in
recognising the evolution of communication systems.
2
South Africa’s new
Companies Act,
3
which came into operation
on 1 May 2011, paved the way for a change in the
modus
of giving notice. Section
6(10) of the Act reads as follows:
“
(10) If,
in terms of this Act, a notice is required or permitted to be given
or published to any person, it is sufficient if the
notice is
transmitted electronically directly to that person in a manner and
form such that the notice can conveniently be printed
by the
recipient within a reasonable time and at a reasonable cost.”
The present application,
in my view, would not have been possible had it not been for a recent
amendment to the Uniform Rules of
Court which provides for service
(other than processes instituting proceedings) by way of electronic
mail, registered post and
facsimile. Four days after the amendment
came into operation the application was launched
ex
parte
on
an urgent basis before me. Applicant in the notice of motion applied
for substituted service to serve a Notice of Set Down and
pre-trial
directions on the Defendant (a sole proprietorship) by sending the
Notice via a facebook message, in circumstances in
which the
Defendant’s attorneys’ withdrew and the Defendant
consistently tried to evade service.
4
After hearing the
submissions of counsel and having duly considered of the application,
the following order was granted:
“
3.
The
Plaintiff is given leave by way of substituted service to serve a
notice on the Defendant by way of a Facebook message addressed
to the
inbox of the following Facebook page:
"http:\\www.facebook.com\#!\Pieter.Odendaal.90"
with the following message:
‘
1.
As you know we act on behalf of CMC Woodworking Machinery (Pty) Ltd
who have sued you in the Durban High Court under case number
6846/2006.
2.
You are given notice that the trial of that action has been set down
for hearing at 9.30 a.m. on 29 August 2012 and that if you
do not
appear at the Durban High Court, Dullah Omar Grove (previously
Masonic Grove), off Margaret Mncadi Avenue (previously the
Esplanade)
on that day (and further comply with paragraph 3 of this message)
then judgment may be granted against you by default.
3.
If you intend to continue to defend this action, you are required
within five working days of transmission of this message to
give
to ourselves an e-mail address
or
facsimile address at which documents can be served upon you;
deliver
by fax to fax number 0866
852382,
or by e-mail to
ianking@mfp.co.za
or
by hand to our offices described in paragraph (d) below) a discovery
affidavit identifying each document which you have in your
possession
which you intend to use at the trial (and in that affidavit to
identify any further documents which you intend to use
but which are
no longer in your possession);
and
thereafter within three working
days
of a request by ourselves that you transmit any documents identified
in such affidavit and requested by us then to deliver
copies of such
documents for inspection by e-mail or facsimile or by hand;
attend
a pre-trial conference to be
convened
on 14 August 2012 at 3pm at our offices namely Mooney Ford, 7
th
Floor, Permanent Building, 343 Anton Lembede Street (previously Smith
Street) (entry Bay Passage), Durban;
furnish
to us by fax transmission or
e-mail
or by hand by 15 August 2012 a summary of the evidence of any expert
witness you intend to call.’
3.
A notice shall also be published
in the Mercury by no later than 13 August 2012.
3.
The costs of this application
are reserved for the decision of the Court hearing the trial of the
action on 29 August 2012.”
I was satisfied that, in
the given circumstances, the order should be issued without further
delay. It appeared to be necessary
to give reasons for the said order
and what follows are the reasons for my decision.
[3] It is necessary to
sketch the background to this interlocutory application, since it was
pivotal to the discretion being exercised
in favour of the applicant
and the order being granted. The applicant bore the onus of
satisfying the court that the specific manner
of service sought is
warranted, since none of the normal forms of service set out in the
rules could be effected. Applicant in
the present application also
convinced me, on the papers, that there is a real likelihood that the
notice would be brought to the
attention of the Respondent. Before
dealing with the merits of the application and the specific relief
granted, I consider it essential
to summarise the history and the
background that led to the application being launched.
Background
[4] The plaintiff (now
applicant) in the action has sued the defendant (now respondent) for
R126 700, being the purchase price for
a woodwork machine. The
defendant has defended the action and pleadings were exchanged. In
addition the defendant filed a Plea
and a Claim-in-Reconvention. The
plaintiff pleaded to the Claim-in-Reconvention and all pleadings
closed in 2008. Thereafter the
matter was set down on the awaiting
trial list by notice of the plaintiff’s attorney, such notice
was served on the Defendant’s
erstwhile attorneys on 26 May
2008. On 22 April 2010 the defendant’s attorneys served a
notice of withdrawal as attorneys
of record. Ever since the Notice of
withdrawal of the defendant’s attorneys was served the
plaintiff tried to serve various
notices on the defendant without any
success.
The matter is set down
for trial on 29 August 2012 and the applicant considered the evasive
conduct as prejudicial to its case and
hampering its preparation for
trial.
Legal Framework
[5] Substituted service
which is the form of service sought
in
casu
,
is described by Farlam
et
al
in
Erasmus
Superior Court Practice
5
as:
“
Substituted
service is ordered when the defendant is believed to be in the
Republic but one of the normal forms of service set out
in the rules
cannot be effected. The court then gives directions authorising some
form of ‘substituted service’. Substituted
service
differs from edictal citation which is ordered when the defendant is
or is believed to be out of the Republic, or the exact
whereabouts of
the defendant are unknown.”
6
(Original footnotes
omitted)
[6] To some extent,
substituted service has been considered to be more symbolic than
actual service. I tend to disagree with earlier
decisions that create
the impression that this kind of service is symbolic in nature. The
aim of this type of service remains to
inform the party concerned of
a particular notice. In
Pretoria
City Council v Ismail
,
7
Schreiner J stated the
following:
“
Substituted
service is a way of achieving in law the same result as if the
proceedings, notice or order, or whatever the matter
may be, had been
brought to the notice of the persons affected. It is not a way of
establishing that such notice or other matter
was actually brought to
the notice or knowledge of the person affected;
it
takes the place of bringing such notice or other matter to his
knowledge
.
So, in ordinary litigation, the summons may with the Court’s
leave be served by posting or by publication or in some other
manner;
and when that is done, there is no doubt that the service is just as
operative and has the same legal results as if the
party who had to
be served was presented with a copy of the document to be served.”
8
(My emphasis)
Similar sentiments were
echoed by Didcott J in
Hlela
v Commercial Union Assurance Co of SA Ltd
:
9
“
And what
happens if, the prospective defendant being human, he is an elusive
character? The Rules of Court allow the summons that
is destined for
him to be served on somebody else at his place of abode, business or
employment. A substituted service that is
a mere token of such, that
is perhaps no more than symbolic, will be permitted once his
whereabouts are unknown.”
10
It is trite that an
application for substituted service should only succeed if the
applicant has set out:
“
(a) the
nature of and extent of the claim;
the grounds upon which the court
has jurisdiction to
entertain the claim;
the manner of service of which the
court is asked to
authorise;
the last known whereabouts of the
person to be
served;
the inquiries which have been made
to ascertain the
present whereabouts; and
(f) any information which may
assist the court in deciding whether leave should be granted and, if
so, on what terms.”
11
[7] On 27 July 2012 the
Uniform Rules of Court were amended and Rule 4A was inserted after
Rule 4.
12
The amendment
incorporates some of the provisions of the Electronic Communications
Act into the Rules. The new Rule reads:
“
4A (1)
Service of all subsequent documents and
notices, not falling under rule
4(1)(a), in any proceedings on any other party to the litigation may
be effected by one or more
of the following manners to the address or
addresses provided by that party under rules 6(5)(b), 6(5)(d)(i),
17(3) or 34(8), by:-
hand at the physical address for
service provided, or
registered post to the postal
address provided, or
facsimile or electronic mail to
the respective addresses provided.
An address for service, postal
address, facsimile address or electronic address mentioned in
sub-rule (1) may be changed by the
delivery of notice of a new
address and thereafter service may be effected as provided for in
that sub-rule at such new address.
Chapter III, Part 2 of the
Electronic Communications and Transactions Act, 2002 (Act No. 25 of
2002) is applicable to service
by facsimile or electronic mail.
Service under this rule need not
be effected through the Sheriff.
The filing with the registrar of
originals of documents and notices referred to in this rule shall
not be done by way of facsimile
or electronic mail.”
[8] Rule 4A specifically
incorporates Chapter III,
Part 2
of the
Electronic Communications and
Transactions Act, No 25 of 2002
as being applicable to effecting
service by facsimile or electronic mail. In the present application I
considered sections 23 and
26 of the Act as important:
“
23. Time
and place of communications, dispatch and receipt.-A data message-
used in the conclusion or
performance of an agreement must be regarded as having been sent by
the originator when it enters an
information system outside the
control of the originator or, if the originator and addressee are in
the same information system,
when it is capable of being retrieved
by the addressee;
must be regarded as having been
received by the addressee when the complete data message enters an
information system designated
or used for that purpose by the
addressee and is capable of being retrieved and processed by the
addressee; and
must be regarded as having been
sent from the originator’s usual place of business or
residence and as having been received
at the addressee’s usual
place of business or residence.”
And
“
26.
Acknowledgement of receipt of data message.-
An acknowledgment of receipt of a
data
message is not necessary to give
legal effect to that message.
An acknowledgement of receipt may
be given by
any communication by the
addressee,
whether automated or otherwise; or
any conduct of the addressee,
sufficient
to indicate to the originator that
the data message has been received.”
Merits of the
application
[9] It is necessary to
consider the type of website proposed by the applicant in order to
understand how it relates to other publication
forms generally used
in effecting substituted service and whether it is accessible.
Facebook is defined as:
“
Facebook
is a social networking website that was originally designed for
college students, but is now open to anyone 13 years of
age or older.
Facebook users can create and customise their own profiles with
photos, videos, and information about themselves.
Friends can browse
the profiles of other friends and write messages on their pages.
Each Facebook profile has a “wall”
where friends can post comments. Since the wall is viewable by all
the user’s
friends, wall postings are basically a public
conversation. Therefore, it is usually best not to write personal
messages on your
friends’ walls. Instead, you can send a person
a private message, which will show up in his or her private Inbox,
similar
to an e-mail message.
Facebook allows each user to set
privacy settings, which by default are pretty strict. For example, if
you have not added a certain
person as a friend, that person will not
be able to view your profile. However, you can adjust the privacy
settings to allow users
within your network (such as your college or
the area you live) to view part or all of your profile. You can also
create a “limited
profile,” which allows you to hide
certain parts of your profile from a list of users that you select.
If you don’t
want certain friends to be able to view your full
profile, you can add them to your “limited profile”
list.”
13
Whilst the website is
initially intended to be a social network service, the present
application showed that it has developed to
serve more than one
purpose. For example it is being used as a tool for tracing
individuals and in some instances to bring information
to the
knowledge of those individuals concerned. In this modern era various
connection devices are used to access the website,
which renders the
site easily accessible to most persons.
14
[10] The applicant
explained in its supplementary affidavit why the notice of set down
could not merely be sent to the defendant’s
email address:
“
5.
Both my attorney and I have
carefully scrutinised the Defendant’s Facebook pages, including
his information page, a printout
of which is Annexure “K”
and nowhere on his Facebook page appears either a contact telephone
number or an email address.
The Defendant has obviously chosen not to
insert any such information as part of his Facebook profile.”
[11] I am indebted to Adv
Harcourt SC, who filed comprehensive heads of argument in support of
the application and who had drawn
my attention to the Canadian case
of
Boivin
and Associates v Scott.
15
Importantly, the Canadian
Court held that the same reasoning for the use of email as a method
of service should also apply for service
by Facebook. The Canadian
court authorised service of the motion proceedings on the address of
the defendant on Facebook.
[12] Before authorising
the sought service I raised with counsel the issue of mistaken
identity or even fake identity. The court’s
concern regarding
the identification of the defendant was addressed by attaching photos
filed on the defendant’s facebook
album,
16
which depicts the
defendant in the company of friends. The photos are clear and the
individual is without a doubt easily identifiable.
[13] Regarding the
privacy of the defendant and the interests to be considered, I was
persuaded that the applicant’s notice
would not impact on the
defendant’s right to privacy since it was requested that a
message be sent to the defendant in the
following manner:
“
14.
On the Defendant’s page,
Annexure “K”, at the top right hand corner immediately
under the solid line in the printed
version is a box headed “send
message”.
15.
If one clicks on that box, a window
is opened enabling you to type and send a direct message to the
Defendant. Once you have completed
typing in your message, you would
click the “send” box and Facebook would communicate to
the Defendant that he has
received a message and, when he clicks on
that link, he would access the message that has been sent to him.
16.
The message would be a personal
message to the Defendant
in this instance and no member of the
public, including those people listed as his friends, would have
access to it.
17.
I submit that, in a case such as
this, if the Defendant elects not to access the message, he does so
at his own peril.”
17
(My emphasis)
In order to promote legal
certainty it was necessary to order, in addition, that the notice be
published in a local newspaper should
the defendant, for some reason,
not have access to any electronic communication devices.
[14] Lastly, this
application should be understood in the context in which it was
launched and the cogent reasons submitted on behalf
of the applicant
in support of the application. Each case will have to be decided on
its own merits and on the type of document
that needs to be served on
the party concerned. This application has reminded me that even
courts need to take cognisance of social
media platforms, albeit to a
limited extent, for understanding and considering applications such
as the present.
__________________________
Steyn J
Date of Hearing: 31 July
2012
Date of Judgment: 3
August 2012
Counsel for the
applicant: Adv Harcourt SC
Instructed by: Mooney
Ford Attorneys
1
See
De Klerk v De Klerk
1947 (2) SA 1289
(T) and the order at
1290 which
was:
“
[I]
shall allow service to be effected by affixing it
ad
valvas curiae
.”
2
See
the
Telecommunications Act, No 103 of 1996
and the
Electronic
Communications
and Transactions Act, No 25 of 2002
.
3
Act
No. 71 of 2008.
4
The
founding affidavit lists various instances wherein attempts were
made to
serve
notices on the respondent and all of them were unsuccessful. (See
paras 6(a)-(g)).
5
Service
issue 37, (2011). Also see Herbstein and Van Winsen
‘
Civil
Practice
of
the High Courts and the Supreme Court of Appeal of South Africa’
Vol
1, 5
th
edition
(2009) at 360 where the authors state that substituted service has
been generally effected by allowing for notices to
be sent by
registered mail or by sending a registered letter.
6
See
Rule 4(2)
op
cit
at
B1-27 to B1-28.
7
1938
TPD 246.
8
Ibid
at 252.
9
1990
(2) SA 503
(N).
10
Ibid
at 507E-F.
11
See
D Harms
‘
Civil Procedure in the
Superior Courts’
, Service Issue
44 (2011)
at
B-20.
12
See
Government Gazette No 35450, dated 22 June 2012.
13
See
http://www.techterms.com/definition/facebook
accessed
on 02/08/2012.
14
See
R
Shambare and A Mvula
,
‘South African Students’ perceptions of
Facebook:
Some implications for instructors’ African Journal of Business
Management (2011) Vol 5, 10557-10564. At 10560
the authors list the
type of devices as follows:
“
Ability
to connect to the Internet is a prerequisite for Facebook usage.
There are numerous connection devices which individuals
can use to
access Facebook. Ultimately, these determine not only the speed but
also the nature of the content accessible on the
site. Subscribers
therefore select connection types most suited to their needs,
lifestyle and budget. While desktop computers
generally provide
faster broadband connection, these tend to be more expensive in that
they require modems and Internet connection
through an Internet
service provider (ISP). On the other hand, subscribers are also able
to access Facebook with WAP-enabled
cellular phones.”
15
2011
QCCQ 10324
(CaNLII) delivered on 15 August 2011. Since the original
text
is in French, counsel handed up to the Court, the Google translation
of the case.
16
See
L1, L2, M1 and M2.
17
See
supplementary affidavit, filed on behalf of the applicant.