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 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
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
an agreement concluded by means of a data message is legally
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
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
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.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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