Legal history was made in the Durban High Court on Tuesday when Judge Esther Steyn agreed to allow service of a notice on a man being sued on his social networking Facebook page.
The judge said she would give reasons for her ruling on Friday.
SA law allows for substituted service of a warrant or writ by telegram and, more recently, the rules of court were amended to provide for service by e-mail, registered post and fax.
While there are cases in the US, the UK, Australia, Canada and New Zealand in which service by Facebook and even Twitter has been approved by the courts, the matter before Judge Steyn is believed to be the first in SA.
Cecil Schickerling of CMC Woodworking Machine (Pty) Ltd is suing Pieter Odendaal Kitchens for R126 000, the purchase price of a woodworking machine called an edge bander.
In his affidavit before the court, Schickerling says Odendaal is defending the action, pleadings have been exchanged, and it has been set down for trial this month.
However, Odendaal’s attorneys withdrew before the allocation of the trial date, and since then neither the sheriff nor three tracing agents have been able to find him.
In the meantime, Schickerling said it seemed the edge bander had been sold to someone else who was also unable to provide details about Odendaal’s whereabouts.
In desperation – and knowing that if Odendaal could not be found the trial date would be lost – his lawyer, Ian King, did a search on Facebook and found Odendaal.
“I know him by sight and I recognise him from pictures of him on the site. According to information contained in his profile, he lives in Ramsgate, which is consistent with all the information I know of him,” Schickerling said.
He said Odendaal was clearly trying to evade service.
“Service by Facebook by way of a message sent to his inbox is for all intents and purposes the equivalent of e-mail, and in the present circumstances it is the most likely way that a communication of the trial date and pre-trial procedures will come to his attention,” Shickerling said.
In heads of argument submitted to the court, advocate Mark Harcourt said that, while there had been vast changes in technology, courts were generally slow in adapting, and reported cases on the issue were hard to find. However, legal articles seemed to indicate that courts overseas were increasingly willing to accept service through Facebook and other social networking platforms.
In a case in the US, it was noted that this would probably be more effective than publication in a local newspaper. In the UK, the high court allowed an injunction against an anonymous blogger to be served on Twitter.
The only reported decision came from the Court of Quebec, Canada, in a similar matter, where normal methods of service had failed and there was a known Facebook site.
In allowing a message to be placed on Facebook, Judge Steyn also ordered that it be advertised in The Mercury newspaper by August 13. - The Mercury