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Sunday, February 1, 2009
Cellphone mightier than the sword

The Labour Court case in Jafta v Ezemvelo KZN Wildlife recently decided that an acceptance of an offer by way of SMS or e-mail results in a binding contract.

The circumstances

Ezemvelo KZN Wildlife e-mailed an offer of employment as HR manager to Mr Jafta. Whilst trying to send an e-mail accepting the offer (and in true IT style) Mr Jafta’s laptop malfunctioned at the critical time. With the time limit on the offer looming Mr Jafta went to an internet café and sent an e-mail acceptance from his G-mail account.
Unbeknownst to Mr Jafta he was again thwarted by a glitch in the internet and his e-mail vanished in cyberspace somewhere between the G-mail server and the Wildlife server. Having received no response the outgoing HR manager of Wildlife sent Mr Jafta an SMS urging him to respond. Mr Jafta replied that he had already done so by e-mail earlier that day and that he had accepted the offer.
The Wildlife employee who received the SMS assumed that the e-mail had been successfully sent and received and then left the employ of Wildlife. Wildlife employed the next suitable candidate.

The issue

The court was called on to decide whether or not an SMS is a valid method of concluding a contract.

The decision

The court had regard to the Electronic Communications and Transactions Act 25 of 2002 (the ECT Act) which states that contracts can be effectively concluded by means of “electronic communications.”
An “electronic communication” is a communication by means of data messages.
A “data message” is data generated, sent, received or stored by electronic means.
The court ruled that an SMS is a data message and it therefore falls within the definition of an electronic communication. Therefore an SMS is a valid and effective means of concluding a contract. The court was at pains to point out that the fact that a message or document is digital and not hard-copy does not detract from its legal weight.

Practical implications

This decision emphasises that digital methods of communication are legally on par with their paper counterparts. Given this fact, it is essential that organisations keep track of all digital communications sent out. Records and back-ups should be kept of e-mails and SMSs so that they can be referred to should the need arise, in the same way that we keep track of any other correspondence. Written by:  Bongani Homela (Candidate Attorney) and Daniel McConnell (Candidate Attorney, Deneys Reitz Inc (Cape Town office)

Copyright © Insurance Times and Investments® Vol:22.2 1st February, 2009
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