Courts ready to accept influence of technology
COURTS are increasingly starting to accept the influence of technology into South African law. Two recent cases, read together with the recent amendments of the Uniform Rules of the Court which provides for service by among other methods e-mail and fax, is a clear indication that the field of cyber law does have a future in the legal profession.
It appears our courts are well prepared to accept the influence that technology has in the field of law.
The two applicable judgments were Experian South Africa (Pty) Ltd vs Haynes (South Gauteng High Court, judgment delivered on May 18 2012) and CMC Woodworking Machinery (Pty) Ltd vs Pieter Odendaal Kitchens (KwaZulu-Natal High Court, judgment delivered on August 3 2012).
In the Experian matter, the applicant sought to interdict the respondent from taking up employment with the direct competitor of the applicant on the basis of an existing restraint of trade agreement for a period of 12 months from the date of termination of his employment. It was common cause that the respondent did take up employment with the applicant’s direct competitor, thereby exposing himself to existing clients of the applicant.
In order to prove that the respon- dent was making contact with some major clients of the applicant, the applicant referred the court to the respondent’s Linked-In account, which showed that he had made contact with the applicant’s major clients on certain specified dates.
The respondent made an application to strike the allegations referring to the Linked-In account, but this did not succeed. The court per Mbha J, stated that “in my view, the entries in first respondent’s Linked-In profile show that he is making contact with key role-players at the applicant’s clients”.
In accepting this as evidence sufficient to protect the applicant’s interest through restraint of trade, the court held that “the applicant has shown that the first respondent has contacted customers of the applicant via his Linked-In profile and has accordingly demonstrated the need for the relief that it seeks”.
Accordingly, the interdict was granted against the respondent based on the strength of evidence obtained via a social media network, demonstrating the willingness of the courts to move from traditional forms of evidence to modern day social networks. In the CMC Woodworking Machinery matter, the defendant’s attorney of record withdrew and despite having provided the plaintiff with a last known address, the defendant had consistently avoided service. The plaintiff, being aware that the defendant had a Face- book account and that the trial date was drawing near, brought an ex-parte (one side only) application seeking an order to serve the subsequent court process through the defendant’s Facebook account. In its judgment, the court per Steyn J stated 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 it”.
Having granted the application, Steyn J further stated that “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 (this)”.