A recent Western Cape High Court judgment (Gerritsen Trading CC t/a Gerritsen Drilling SA v Blydskap Holdings (Pty) Ltd (2024/146798) [2025] ZAWCHC 400 (27 August 2025) in a provisional liquidation matter quietly but firmly confirms what many litigators already sense: WhatsApp threads are no longer "background noise"-they can be the decisive evidential spine of a case. The court expressly noted that WhatsApp, as an "unfiltered contemporaneous record," may be "the best evidence" of what parties thought and agreed at the time; in this case, the admitted chats carried the day.
What the Court did with the WhatsApp record
The dispute arose from unpaid drilling invoices. Beyond formal invoices and part-payments, the court itself, 'drilled' into the WhatsApp exchanges between the company's director and his counterparty. Those messages included plain-language acknowledgements ("we will pay this month"), explanations about cash flow, and timing commitments that never materialised. The court took the texts at face value (there was no attempt to explain them away) and treated them as admissions supporting three pillars: the existence of the debt, the absence of a genuine defence, and commercial insolvency. In the court's own summary: the WhatsApp exchanges were decisive.
Two features are worth underlining for practitioners and in-house teams:
- Contemporaneity counts. Because WhatsApp messages are time-stamped, conversational, and often candid, they can outrun later, lawyered narratives that attempt to recast events. Where the messages are admitted and coherent, courts are inclined to read them for their ordinary meaning.
- Business reality over labels. The debtor tried to characterise "pro forma" invoices as administrative, but the messages (and part payments) said otherwise. The court preferred the lived transaction reflected in chat and conduct over later technical gloss.
The judgment also flagged that other South African courts have leaned on WhatsApp in liquidation contexts, an emerging theme rather than a one-off.
With Prejudice, Without Prejudice. WhatsApp
The Court's observation is a timely one: as WhatsApp becomes the de facto channel in business and the legal profession, it isn't just a contemporaneous note; it can amount to a With Prejudice admission. Unless a conversation genuinely forms part of bona fide settlement negotiations (and is clearly run on a Without Prejudice footing), assume your messages are discoverable and usable in court to prove liability, indebtedness, or inability to pay. The court here did exactly that: it treated the chat history as straightforward admissions against interest, not as informal feelers or privileged settlement talk.
That cuts both ways. If you do need to negotiate, move the discussion to a properly marked, counsel-managed channel, ensure there's a genuine attempt to compromise, and keep the WhatsApp thread to logistics only (dates, venues, document delivery) – not to debating liability or quantum in casual language that reads like an admission.
Practical Implications
- Treat WhatsApp like a letterhead. If a message would make you nervous on company stationery, don't send it in green bubbles. Simple acknowledgements ("we will pay this month") may be read as binding admissions.
- Channel and choreography matter. Create a single, counsel-supervised point of contact for sensitive matters. Fragmented chat groups breed contradictions the other side will stitch together.
- Mind the labels but rely on substance. "Without prejudice" helps only when the exchange is a genuine settlement attempt. Slapping the words on a running operational chat won't cloak it. If in doubt, separate the channels.
- Keep the record clean. If cashflow delays are real, avoid loose promises. Offer dated, supportable timelines and follow with formal correspondence. The court here contrasted casual assurances with non-payment to infer both indebtedness and commercial insolvency.
The Bottom Line
WhatsApp is now part of the evidential mainstream. Used carelessly, it will hand your opponent a contemporaneous script of admissions; used carefully, it can corroborate your version and anchor credibility. In high-stakes commercial and employment matters alike, assume the chat will be Exhibit "A"- and draft accordingly.
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.
