‘You’ve got mail’ – Have electronic communications become the new registered mail? Quarter 1 2022

By CIRESH SINGH, Published in Technology

It is difficult to imagine the world without technology. The internet, social media, on-line shopping and emails have become a common part of everyday life.

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Technology has created and continues to create a new economic landscape which has revolutionised the global economy and fundamentally changed the way we communicate. The pace at which technology has infused into human life has occurred so rapidly that its character and implications from a commercial and legal perspective have not yet been fully understood (S.L Gereda, Telecommunication Law in South Africa (2006), The Electronic Communications and Transactions Act, Chapter 6, 263). The age of digitalisation has changed the way we interact with one another and, from a legal perspective, it has changed the way legal transactions and court processes are initiated and concluded.

Internationally, many countries have incorporated technology into their business and work process. Furthermore, from a legal landscape, many countries have infused technology into their court process, and several foreign courts have allowed service of summons and other court documents digitally by email or by social media.

Traditionally, in South Africa, most regulations required delivery of court notices and documents via registered post or by the Sheriff of the High Court; however, recently there seems to have been a strong shift to exploring delivery by electronic means.

This short article considers whether technology can be used to effect delivery of legal notices, and considers the question of whether email has now become the new registered 'postal' mail.

Legislative provisions

In South Africa, the Electronic Communications and Transactions Act (25 of 2002) (ECTA) is the primary legislation which governs digital communications. The main objectives of the Act are to promote, facilitate and regulate electronic communications and transactions. The ECTA also seeks to develop a national e-strategy, to promote universal access to electronic communications and transac-tions, and to prevent the abuse of information systems. In essence, the ECTA aims to address the world of e-commerce and establish legal principles to govern digital transactions. Accordingly, there are several provisions in the ECTA that allow delivery of documents electronically via email. For example, s19 (4) of the ECTA indicates that where any law requires or permits a person to send a document or information by registered or certified post or similar service, that requirement is met if an electronic copy of the document or information is sent to the South African Post Office Limited, is registered by the said Post Office and sent by that Post Office to the electronic address provided by the sender. While on a strict interpretation of s19, the ECTA allows electronic delivery of legal notices, albeit, by still using the Post Office, there are several other legislative provisions that allow for the electronic delivery of certain documents and notices independently.

Rule 4A (1) of the Uniform Rules of Court provides, inter alia, that the service of documents and notices in any proceedings may be effected by facsimile or electronic mail to the respective addresses provided. Rule 4A (4) further provides that service under this Rule need not be effected through the Sheriff.

Section 65 of the National Credit Act provides that if no method is prescribed for delivery of a particular document, delivery may occur by fax, email, or printable webpage.

Section 44(1) (a) of the Superior Courts Act provides, inter alia, that in any civil proceedings before a Superior Court, any summons, writ, warrant, rule, order, notice, document or other process, or any other communication which by any law, rule or agreement of parties is required or directed to be served or executed upon any person, may be transmitted by fax or by means of any other electronic medium as provided by the rules. Rule 44 (1) (b) further provides that any document received or printed as a result of the electronic transmission is of the same force and effect as if the original had been shown upon the person concerned.

Case law

South African courts have steadily adopted a favourable approach to the use of technology in court process and there are many judicial decisions that have affirmed the validity of electronically delivering court notices.

In the cases of FirstRand Bank v Ngcobo, North Gauteng High Court, Case No 24661/2009; FirstRand Bank v Allie, Western Cape High Court, Case No 9410/2020; and FirstRand Bank v Joubert, North Gauteng High Court, Case No 34079/2020, the courts approved judgment applications in instances where the s129 notices in terms of the National Credit Act had been delivered via email, as opposed to registered post. In the Ngcobo case, the court acknowledged that delivery of the s129 notice via email constituted valid delivery. In the case of FirstRand Bank v Manie, North Gauteng High Court, Case No 66436/2019, the court went further in showing its acceptance of electronic delivery by ordering that the Rule 46A notices in that instance be delivered to the defendants via registered email, as opposed to registered post.

Another example of delivery by electronic means can be seen in the case of CMC Woodworking Machinery v Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD). In this case, the court allowed for the service of certain notices by a Facebook message. In this matter, the defendant had evaded service of the notices, and the plaintiff applied for substituted service via Facebook. The court found that this was warranted since normal forms of service were unsuccessful, and that using Facebook would bring the notice to the defendant's attention.

Conclusion

The above legislative and judicial cases acknowledge the validity of notices being delivered via email. Accordingly, it is trite that delivery of documents and notices via email now constitute valid and effective delivery. In contrast to the traditional delivery by registered or regular post, the use of email is quicker, and more cost effective and reliable. Moreover, the digital delivery of a document provides a digital track and trace receipt, which serves as greater evidence to the fact that a document was sent (s23 (a) of the ECTA and Article 10 of the UNCITRAL Model Law on Electronic Commerce).

Given the advancements in technology and the acknowledgement of its incorporation into the law, it will not be long before email will be considered the new form of registered mail, and the email address will be used as a domicilium address to effect service for court process.

Dr. Singh writes in his personal capacity.