From 27 July 2012, parties will be able to serve documents or notices on each other via facsimile or electronic mail. This follows an amendment to the High Court Rules of South Africa (the Amendment) aimed at facilitating the efficiency of the South African judicial system.
The Amendment was published by The Department of Justice and Constitutional Development in the Government Gazette No. 35450 on 22 June 2012.
Prior to the Amendment, documents or notices had to be served on the other party's physical address or the physical address of the party's appointed attorneys.
The following serves as a summary of some of the key features of the Amendment:
The insertion of Rule 4A
Rule 4(A)(1)(c) provides that all subsequent documents or notices which do not fall under rule 4(1)(a), can be served in a variety of manners, including via facsimile or electronic mail. Rule 4(1)(a) regulates the service of documents initiating proceedings. This means that Rule 4(1) does not apply to the service of any documents initiating proceedings which must still be effected by the Sheriff of the court.
The effect of the insertion of Rule 4A is that it will no longer be necessary to serve subsequent documents through the Sheriff of the court.
Rule 4(A)(3) further provides that Chapter III, Part 2 of the Electronic Communications and Transactions Act No. 25 of 2002 (ECTA) will apply to service by facsimile or electronic mail.
The provisions of Chapter III, Part 2 of ECTA provide, amongst others, that:
- an agreement concluded by means of a data message is legally enforceable;
- a data message used in the conclusion or performance of an agreement must be regarded as having been sent by the originator when it enters an information system outside the control of the originator;
- a data message must be regarded as having been received by the addressee when the complete data message enters an information system designated or used by the addressee and is capable of being retrieved and processed by the addressee;
- an acknowledgement of a data message is not necessary to give legal effect to the message; and
- any acknowledgement of receipt may be given by any communication by the addressee (automated or otherwise) or even any conduct of the addressee which is sufficient to indicate to the originator that the message has been received.
The same evidentiary principles should follow in respect of the service of documents in accordance with the Amendment.
Amendments to Rule 17 and Rule 19
Rule 17 is amended to provide, amongst others, that a summons shall include the electronic mail address where available. In addition, the plaintiff may indicate the preferred manner of service (including via facsimile or electronic mail) in the summons. The defendant may also, at the written request of the plaintiff, consent in writing to the exchange or service by the parties of subsequent documents by way of facsimile or electronic mail.
The amendment of Rule 19 provides that the defendant may indicate the preferred manner of service in the notice of intention to defend. The defendant may, in writing, request the plaintiff to consent to the service of subsequent documents and notices by way of facsimile or electronic mail. If the plaintiff refuses or fails to deliver consent then the defendant may make an application to court to grant such order.
The Amendment should have benefits in improving the efficiency of litigation in South Africa. It remains to be seen whether challenges may arise where litigating parties dispute the receipt or transmission of documents which are sent by electronic mail.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.