Before Covid-19, we could have driven to any attorney’s office to serve documents, but this became problematic and, at times even impossible, due to the pandemic. In addition, we have become a technologically advanced society and the legal profession needed to follow suit. Technology has advanced tremendously over the past few years; and the use of technology made the practise of law more efficient and effective.
As a result, attorneys had to change their mode of legal practise and this included the electronic service of documents. Serving documents electronically has saved costs and has certainly become a more efficient way of ensuring that documents are served timeously on other parties.
Fortunately, both the magistrates’ courts rules and the High Court uniform rules allow the serving of documents via electronic mail.
Magistrate’s Court:
The service of summons has not changed and should be served by the Sheriff.
In terms of Rule 5(3)(b) of the Rules regulating the conduct of the proceedings of the Magistrates’ Courts of South Africa, the plaintiff can advise the defendant that it is prepared to accept service of all subsequent court documents in a manner other than at the physical or postal address provided. This certainly opens the door for the use of electronic mail for serving of documents.
Rules 5(3)(c) states that, if an action is defended, the defendant may, at the written request of the plaintiff, deliver a consent in writing to the exchange of subsequent documents and notices in the suit by way of facsimile or electronic mail, while rule 5(3)(d) provides that, if the defendant refuses or fails to deliver such consent in writing, the court may, on application by the plaintiff, grant it.
High Cout:
The High Court did not expressly provide for service by electronic mail until the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa were amended in 2012.
Rule 17(3) is similar to Rule 5 of the Magistrates’ Courts Rules. Rule17(3) states that every summons shall bear an attorney’s physical address, postal address, and, where available, the attorney’s facsimile and electronic mail addresses. The summons is served on the Defendant by the Sheriff. The plaintiff may indicate in the summons whether it is prepared to accept service of subsequent documents and notices electronically. The defendant may deliver a consent in writing to the exchange or service by both parties of subsequent documents and notices via electronic mail.
Rule 4A states that service of all subsequent documents and notices may be effected by electronic mail to the respective addresses provided. The Rule also states that the filing with the Registrar of originals of documents and notices referred to in this Rule should not be effected by way of facsimile or electronic mail.
Rule 4A (3) integrates Part 2 of Chapter 3 of the Electronic Communications and Transaction Act (ECTA). This part of the Act relates to service via electronic mail.
Chapter 3, Part 2 deals with the communication of data messages. Section 23 addresses the time and place of communications, dispatch, and receipt. The section essentially states that a data message must be regarded as having been sent by the originator, when it enters an information system outside the control of the originator, and when it is capable of being retrieved by the addressee.
Section 24 states that the expression of intent or other statement is not without legal force and effect merely on the grounds that it is in the form of a data message; or that it is evidenced by means other than an electronic signature.
Section 25 states that a data message is that of an originator if it was sent by the originator personally, a person who has authority to act on behalf of the originator, or an information system programmed by or on behalf of the originator to operate automatically.
More importantly, Section 26 states that an acknowledgement of receipt may be given by any communication by the addressee, but more importantly, this section states that an acknowledgement of receipt of a data message is not necessary to give legal effect to that message and that any conduct of the addressee that indicates receipt, will be sufficient.
Under the ECTA, the term “email” is defined as a “data message used or intended to be used as a mail message between the originator and addressee in an electronic communication”.
It is evident from the above that technology has changed and altered the way in which we exchange documents between parties. However, we have to be mindful of the above when we exchange documents via email. One example relating to difficulties in terms of electronic exchange of email relates to a matter that the writer dealt with. The plaintiffs agreed to exchange documents via electronic email. A notice of bar was emailed to the defendant and the plaintiff provided proof that this had been sent. However, the defendant never received it.
This illustrates that, despite our legislation, there are certain problems relating to electronic service of which attorneys need to be aware. These problems are rare because the notices are normally receipted and returned to the other party via email. And, despite occasional problems relating to service via electronic mail, there are many advantages to the service of documents via email. As mentioned above, it is both cost-saving and time-effective. However, the parties need to ensure that they have relevant procedures in place in their offices to return receipted copies of the relevant notices.
