1 April 2020 by , and Dispute Resolution Alert

The “app-turn” of personal service

The right to access to adequate housing is guaranteed in terms of section 26 of the Constitution. Accordingly, the courts apply very stringent measures in assessing proper service of Rule 46A applications which relate to execution against primary residences. In terms of Rule 46A(3)(d), “Every notice of application to declare residential immovable property executable shall be served by the sheriff on the judgment debtor personally: Provided that the court may order service in any other manner.

Now imagine this, you are sitting in the unopposed motion court for a Rule 46A application;  armed with a service affidavit detailing every aspect of your attempts to serve the application on an evasive respondent via the sheriff (who affixed it to the door), registered post, email and every other recognised manner of service. Despite all your efforts, the court is not satisfied that there was personal service as required by Rule 46A(3)(d). The need for personal service has arguably been abused by many judgment debtors who evade personal service by the sheriff in the hope that the application will not be granted as a result of a failure to effect service in accordance with the rules. It appears that our courts’ natural inclination is to postpone Rule 46A applications until such time as every service avenue has been explored. 

The use of technology and its impact on daily life has undeniably risen rapidly worldwide, with software applications and social media platforms leading the race in technological advancements. It is unsurprising that messaging platforms such as WhatsApp now support as many as two billion users. Social media platforms have blurred the lines between social and business use, as both memes and contracts are shared on applications such as WhatsApp. Could the burden of personal service on evasive litigants be alleviated through the use of these platforms?

When the rules relating to service were created, the only certain way to serve documents was to physically hand the documents to the relevant recipient. However, with the rise of technology, particularly social media, and its increased use for business purposes, it might be time to consider these platforms as an alternative method of service. Our courts appear to hold the same view. For instance, in the unreported case of CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens (KZD) (unreported case no 6846/2006, 3-8-2012) Steyn J, held that “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 [them]”. Moreover, our legislation is increasingly, recognising the potential of technology, even social media platforms, to advance legal practice. The Administrative Adjudication of Road Traffic Offence Amendment Act 4 of 2019 (AARTO), recently introduced into law electronic service of legal process, which among other things, entails the transmission or reception of information by means of magnetism, radio or other electromagnetic waves. Arguably, this would include service via social media platforms such as Facebook.

The benefits of serving court process via social media go without saying. The recent COVID-19 (Coronavirus) outbreak has wreaked havoc across the world which has seen, among other things, the closure of schools and a general limitation of human contact. The judicial system has not been exempted from the effects of this pandemic. With the introduction of the court’s online file management system, Caselines, the courts are able to limit the number of feet walking into the court. However, service of court process, particularly in Rule 46A applications, still requires personal service, which inevitably requires human contact. Although the courts have attempted to limit human interaction through Caselines, an order for the service of Rule 46A applications through software applications, would further abate the risk of the spread of the Coronavirus. Such an order is not earth-shattering, as the Rules already contemplate that the court may make an order for any alternative form of service.

In addition, it is indisputable that the costs of service can quickly add up to a substantial amount, particularly where an evasive respondent is involved. As a general rule, banks require, in terms of their standard loan agreements that the legal costs incurred in the process of foreclosing on the property be paid by the judgment debtor on an attorney-client scale. Therefore, the cost of the efforts to effect personal service, ironically, is borne by the judgment debtor whom the court purports to protect. Service via social media platforms, however, would significantly reduce the costs of service. What would be required to effect service is merely a Wi-Fi connection. In addition, on most social media platforms, it is possible and relatively easy to ascertain if a person has “read” a message sent to them. Effecting service in this way would immediately do away with the need for various attempts at service where the respondent is being elusive. Instead of a file filled with the proof of various attempts at service, one would need to present the court only with a screenshot indicating that the application was “read” by the respondent. Furthermore, in our increasingly environmentally conscious society, one need not go to great lengths to explain the benefits of saving paper that service via social media platforms would undoubtedly bring. Having regard of the non-exhaustive benefits set out above, it is clear that advancing our laws to incorporate service via social media platforms could alleviate the burden of personal service on judgment creditors.

As stated above, Rule 46A(3)(d) provides that the court may order service in any other manner. This creates a dual application process, in terms of which the judgment creditor must, in addition to the initial application to declare the property executable, apply for an order to effect service in another manner, if the court is not satisfied by the manner of service of the initial application, which has cost implications. In order to reduce the costs, it would be efficient in the interim, particularly in light of the COVID-19 outbreak, for the courts to issue a directive in terms of which service may be effected via software applications. As a long-term solution, it will be necessary for the rules to be amended to incorporate electronic service in line with the reasoning of Steyn J. This would create a permanent solution for any future crises with no need for the courts to issue directives to cater for each new crisis that comes. This would mean that should there be a crisis or should personal service by the sheriff fail, judgment creditors would immediately have the option to serve electronically, provided that they can show proof of service. 

Much like any other aspect of technology, there are a few potential problems that could arise from service through social media platforms and software applications. What immediately comes to mind are the potential privacy violations that could occur. Currently, social media platforms are structured to preserve anonymity of users, who are entitled to choose their “screen names” on these platforms. Additionally, social media account holders with common names could potentially be confused for each other. The obvious risk there, is documents being served on the wrong person and simultaneously providing a third party with private information such as the personal details of the intended recipient. Moreover, while most of the world is using social media platforms, presence thereon is not mandatory, accordingly, trying to track whether or not a respondent has social media accounts alone presents difficulties.        

Having regard of the foregoing, it is apparent that service via social media platforms would undoubtedly assuage the burden carried by judgment creditors when it comes to personal service. It is also encouraging to see that both our law makers and our courts have not only favourably considered the potential of technology to improve law practice but are taking strides to make this a reality. It appears that there is definitely room in South African law for the increased use of technology in encouraging access to justice. Perhaps the recent COVID-19 outbreak has revealed the need for the amendment of our laws to incorporate technological advancements so that there is continuity in our court processes even in the event of crises. That said, it is also clear that there are various hurdles to be met before software applications are a standardised method of personal service.   

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