While the Constitution is the supreme law of South Africa, the common law is the basis and its principles are still used by courts when interpreting and developing law. This is specifically relevant in the online and digital domain (collectively referred to as the "online space"), which has seen a rapid growth in new precedents set by the courts in recent months.

The number of judgements in the online, social media and mobile phone space shows us how the courts have used the common law to create precedent in this new area of law. It is significant how the wealth of common law and its ability to adapt is held back by judicial conservatism. This will be discussed using examples from three areas of law: defamation, civil procedure and labour law.

The law of defamation seems the easiest to deal with as courts have expressed no difficulty in applying the common law requirements and remedies of defamation to the online space. Notably, in January this year, in the case of H v W 2013 (2) SA 530 (GSJ),a Johannesburg man (the plaintiff) sued a friend (the defendant) for defamatory statements made about him on Facebook.

According to the common law, for an action of defamation to succeed, there must be a wrongful and intentional publication of a defamatory statement concerning the plaintiff. In this case, the court found that the publication on Facebook met all the common law requirements for defamation and ordered that the defamatory comments be removed from Facebook and further, that the defendant in the matter refrain from posting comments about the plaintiff in future.

This judgement not only recognised and developed the common law to account for the online space and the social media age but also provided a remedy exercisable in the online space. It is just one of the successful defamation suits involving social media and shows the court's ease in developing the common law of defamation to account for a new means of communication and publication.

As far as the rules of civil procedure and their relationship with social media are concerned, the court in CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD)held that substituted service via Facebook is legally valid. In this case, the court looked at the common law requirement of service.

Essentially, in law, a defendant must be given notice of legal proceedings against him. This is called service and is usually carried out by a sheriff who delivers the notice to the defendant personally or to the defendant's place of business or residence. However, where a defendant repeatedly tries to evade service or cannot be found, the common law allows for a form of substituted service, which generally takes the form of affixing a notice to the door of the defendant's last known residence or last known place of business.

Substituted service can also be effected by publishing the notice in a local newspaper. The reasoning is that it is the last resort or attempt at informing the defendant of the legal proceedings against him. Such service, in modem times has become merely symbolic and rarely reaches the defendant.

However, the KwaZulu-Natal High Court in this case looked at the common law purpose of substituted service and held that it would be more in line with the common law of substituted service to allow service via Facebook as it had a greater chance of reaching the defendant. The court was also persuaded by the fact that the Companies Act (71 of 2008) and the Uniform Rules of Court, as amended in 2012, allow notices to be conveyed through electronic communication.

While electronic communication was initially intended to be via facsimile or email, the court interpreted the uniform rules of court to include Facebook messages too as they are akin to emails.

This is another example of how common law principles and purposes are ideally suited to cover unforeseen Akram eventualities created by modem forms of communication. However, it is also an example of how the courts, while open to using the common law principles to develop the law, are conservative in their approach; the court in this instance, while allowing service via Facebook, also placed great emphasis on the need to publish the notice in a local newspaper.

Finally, in the labour law sphere, in the case of Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC),the court held that an SMS was an effectively legal form of communication and is the same as an email or written contract. The court further held that an SMS is an effective way of concluding a contract.

This was later confirmed in the case of Sihlali v SA Broadcasting Corporation Ltd. (2010) 31 ILJ 1477 (LC)where the court held that termination of an employment contract by SMS was valid. In coming to this conclusion, the court stated that such a termination is valid if it complies with the common law requirements for termination of a contract.

These requirements are that there must be an unequivocal expression of will and must be in writing. The court held that an SMS was a form of writing and that it was evident from it that the employee expressed a clear intention that he no longer wished to be bound by the employment contract.

This is once again an example of how the common law principles and requirements, in spite of their age, are broad enough to be applied to legal issues in modem day. However, while courts have accepted that an employee can validly terminate a contract of employment via SMS, provided that it complies with the common law requirements, the position of acceptance of an employment position by SMS is still in dispute.

In April this year, the North Gauteng High Court held that acceptance of a nomination for mayor via SMS was invalid. The court based its ruling on the fact that acceptance by SMS was not provided for in the council rules. While possibly invalid by the council rules, it is unclear why its validity was not remedied by the common law. It seems absurd to accept one hut not the other. This creates some uncertainty as under the common law, as developed by our courts, the acceptance should be regarded as valid.

In conclusion, though new to our law, the online space is a fast growing area. But as is evident, by applying and developing the relevant common law principles purposively to these situations, there will be a much greater level of certainty in the law and it will allow for faster development. 

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