South Africa: Online Media And The Common Law

Last Updated: 22 November 2013
Article by Zaakirah Akram and Dimitra Kouvelakis

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. 

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.