Save your SMSes

In the case of Jafta v Ezemvelo KZN Wildlife, Ezemvelo KZN Wildlife emailed an offer of employment as HR manager to Jafta. While trying to send an email accepting the offer (and in true IT style) Jafta’s laptop malfunctioned. With the time limit on the offer looming, Jafta went to an internet café and sent an email acceptance from his G-mail account.

Unbeknown to Jafta, he was thwarted by a glitch in the internet and his email vanished in cyberspace.

Having not heard from Jafta, the outgoing HR manager of Wildlife sent him an SMS urging him to respond. Jafta replied that he had done so by email earlier that day and that he had accepted the offer.

The wildlife employee who received the SMS assumed the email had been successfully sent and received and left the company.

Having supposedly not heard from Jafta, Wildlife employed the next suitable candidate. Jafta took the company to court and won.

The court ruled that an SMS is a data message and falls within the definition of an electronic communication. As such it is a valid and effective means of concluding a contract.

The court ruled that the fact that a message or document is digital and not hard copy does not detract from its legal weight.

This means that digital methods of communication are legally on par with their paper counterparts.

It is essential that organisations keep track of all digital communication. Records of e-mails and SMSs must be kept so that they can be referred to should the need arise.

Bongani Homela and Daniel McConnell are attorneys at Deneys Reitz

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