Written by and Alisha Naik and Dean Scher, Candidate Attorneys; and Chantelle Gladwin-Wood, Partner
14 April 2021
Introduction
This article explains the need for a change to the law to permit electronic service of documents by the sheriff. The authors hereof drafted a petition to the Minister of Justice and Constitutional Development (“the Minister”) to amend Section 44 of the Superior Courts Act 10 of 2013 (“Section 44”) to expressly allow for the electronic execution of processes by the various sheriffs operating in the Republic. What follows consists mainly of extracts from the petition.
The Current Position
Section 44 currently provides that electronic transmission of documents to a sheriff is possible, and that the sheriff may serve a printout/copy of that document received electronically, as if it were an original.
However, Section 44 does not authorize the sheriff to serve any document by electronic means.
Motivation for Amendment of Section 44
Service via email would, by virtue of both the prevalence of the technology and the personal and unique nature of an email, in many cases be a more cost-effective measure than physical service and would in many instances be more reliable than some of the prescribed methods of physical service. For example, a letter left at a premises under the control of another person is not as secure as an email sent to the defendant/respondent via email, where it is possible to track and trace that person’s personal receipt, and even reading, of the correspondence.
It was only under the Lockdown Level 3 restrictions that the sheriffs were permitted to return to “normal work” in the sense that they are permitted to serve all processes and documents again (whereas before, in terms of Level 5 and 4 restrictions, they were limited in terms of which processes they were permitted to serve). This, however, does not address the need to deal with the enormous backlog of service requests, or the practical difficulties that sheriffs might have in getting their office staff “back to work” in terms of the social distancing and “return to work” regulations, all of which will undoubtedly delay and maybe even (in the long run) increase the cost of service of processes.
Moreover, the functioning of the legal system as a whole has been gravely impacted by the SARS-COV-2 (“COVID”) pandemic and, whilst tremendous efforts have been made by all role players in our justice system to mitigate the impact on service delivery, inefficiencies and the sheer costs involved (in equipping every public office in the justice system with the proper equipment/resources to return to “normal work”) are insurmountable.
Electronic service of processes initiating legal proceedings would reduce both the time and cost involved, would reduce the burden on our sheriffs in relation to service, would speed up service delivery and would, in turn, increase access to justice for the public at large.
The urgency of the above request is heightened by the grave and serious threat that is posed to the effective operation of the legal system as a result of COVID. In order to limit the spread of the virus, it has been government policy in South Africa to limit any and all unnecessary contact between people. Our government has adopted a strategy of isolation, which seeks to limit non-essential contact between people.
We accordingly requested that the Minister forthwith amend the current Section 44 of the Superior Courts Act to provide expressly that electronic service by sheriff is permissible, for the execution of process by the sheriff, especially in respect of processes that initiate legal proceedings, and, in doing so, impose guidelines as to how such service should be carried out.
Proposed Amendment
In essence, our proposal would only require a minor variation to Section 44, as it currently stands. The proposed amendment would then make the service of processes initiating legal proceedings subject to the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”), in the same manner that the service of subsequent pleadings is already subject to same.
The Minister may even want to consider imposing stricter conditions for the receipt of the email than provided for in ECTA. For example, the amended Section might provide that service by email would only be considered complete when both a delivery and read receipt have been obtained (this is a very strict requirement, and not even physical service requires proof of actual reading by the recipient, so this is not recommended) or that once delivery to the recipient’s server is complete and it can be shown that the recipient utilized that same email address for communications frequently in the month prior to the service, that service would be deemed to be complete. This would stop unscrupulous persons from stultifying the purpose of electronic service by simply refusing to open the document that appears in their email application because “they don’t want to”.
Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case by case basis and you should consult an attorney before taking any action contemplated herein.
