Courts ready to ac­cept influence of tech­nol­ogy

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - LER­ATO MON­NAKGOTLA

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)”.

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