A social service? A case for accomplishing substituted service via WhatsApp in South Africa
Authors Rilwan F Mahmoud & Adrian Hugh Bellengère
Affiliations: PhD graduate, University of KwaZulu-Natal; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 3, p. 371-388
The amendment of the Uniform Rules of Court to include service by electronic mail has raised the interesting question of service through electronic media other than electronic mail. Recent developments have partially answered this question with regard to substituted service via Facebook. However, it is still a relatively novel concept and has not yet been extended to WhatsApp in South Africa. This note examines the criteria employed in determining the likelihood of accomplishing substituted service via WhatsApp. First, the principles underlying substituted service are examined, followed by an assessment of the impact and reach of social media platforms, a summary of the initial moves to incorporate them into South African procedural law, and a description of the technical attributes of WhatsApp. Several judgments from around the world, tentatively embracing service via WhatsApp, are then discussed, followed by an assessment of the standards that need to be met in order to ensure effective service, and the factors that a court needs to consider when faced with such a request. The note concludes that a reasonable degree of certainty that service can be achieved by WhatsApp exists, and that it could therefore be an effective medium for substituted service.