With the advent of electronic communication over the last few decades, e-mail has become the most common method of communication in business. The notice clauses of most contracts make provision for parties to send notices to each other via e-mail. Proceedings before the Companies Tribunal ("Tribunal") are no different; where parties often use e-mail in instances where a notice has to be delivered to a respondent.
Table CR 3 of Annexure 3 to the Companies Act Regulations ("Regulations") sets out the various methods of delivery in matters before the Tribunal, and states that deemed delivery in the case of email notices is –
'...the date and time recorded by the computer used by the sender, unless there is conclusive evidence that it was delivered on a different date or at a different time'.
However, parties in proceedings before the Tribunal must be aware of an important caveat to this rule.
The Tribunal has taken the view that it is not enough that the sender's computer recorded the intended delivery. The sender of a notice via e-mail must demonstrate to the Tribunal that the email address is that of the intended recipient, and that the email was received by the intended recipient. This is especially important when an applicant seeks a default ruling from the Tribunal, on the grounds that the respondent has not responded to a notice within the prescribed time.
In the recent case of Moeketsi v Majikijela1, one director (the "Applicant") approached the Tribunal for an order to remove her co-director (the "Respondent") as a director of the company. In these circumstances, Regulation 142(2) requires an applicant to serve a copy of the application and a supporting affidavit on the respondent within 5 business days after filing it.
In Moeketsi, the Applicant 'served' [Tribunal's emphasis] a copy of the application on the Respondent within the required 5 business days. After receiving no response from the Respondent within the prescribed 20 business days, the Applicant sought a default ruling from the Tribunal.
The Tribunal was unconvinced that the Applicant had demonstrated – factually –that she had served the Respondent, despite the Applicant providing details of the e-mail address to which the application was sent. The Tribunal explained that –
'While this email may well belong to the Respondent, there is nothing provided to the Tribunal that indicates that it does. Even worse, there is nothing placed before the Tribunal that indicates that the Respondent has responded to this email or at the very least, seen this email. The Tribunal cannot finalise the matter in circumstances where there is doubt that the Respondent is aware of these proceedings. It is not enough that the Applicant's computer recorded the intended delivery'.
It is clear thatproving to the Tribunal that the procedural requirements have, as a matter of fact, been complied with is essential. It is not enough to allege that a respondent has been served or that the e-mail address belongs to the respondent. The Tribunal requires proof of both, failing which the application will be removed from the roll.2 The Tribunal commented that this hurdle could have easily been overcome by providing the Tribunal with the most recent email communication between the Applicant and the Respondent.
The Tribunal emphasised that the requirement to serve the application on a respondent is premised on the rules of natural justice. Not doing so isconstitutionally unjustifiable, as it would deny the Respondent of her right to present her case. It referred to the Shakoane v Community Schemes Ombud Service3 ruling, where the court held that –
'Where a sender chooses to rely on e-mail for service ... they must track the email for display and or delivery to the intended recipient, or they must use the traditional methods of service'and that –
'...at the very least, emails must be tracked either for a delivery or a read receipt.'
This ruling should serve as a caution to directors or shareholders prosecuting applications before the Tribunal. It highlights the need for proof of service on respondents in cases where email is used as the method of service.
As a starting point, the sender of a notice must provide prima facie evidence that the e-mail address used belongs to the intended recipient. An easy way to establish this, as indicated by the Tribunal, is to provide recent correspondence with the email address in question. Secondly, the sender must show that an email was actually sent to the recipient.
It is only after the Tribunal is satisfied that a respondent 'received the application and decided not to participate in these proceedings' that it can adjudicate the matter and make a ruling against a respondent.4 The Tribunal advised that if it is still difficult to obtain a response via e-mail, there is always the option to serve the papers by way of the sheriff.
Footnotes
1. Moeketsi v Majikijela CT01861ADJ2024.
2. Mahlangu v Mofokeng CT01752ADJ2024 at para [22]:
'Since there is doubt that the Respondent received the application, there is no need to entertain the merits of the application.'
3. Shakoane v Community Schemes Ombud Service and Others [2023] ZAGPPHC 1825 (20 October 2023).
4. Moeketsi, at para [20].
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.
