Wednesday, November 19, 2008

SMS - Falls within the Legal Definition of an Electronic Communication

According to media reports a Court recently found that an SMS is a data message and falls within the definition of an electronic communication. It is a valid and effective means of concluding an agreement or contract. The fact that it is digital and not a hard copy does not detract from its legal status. Digital methods of communication are accordingly legally on a par with their hard copy paper counterparts.

In the case of Jafta v Ezemvelo KZN Wildlife the organisation (Ezemvelo KZN Wildlife) e-mailed an offer of employment to Jafta. The offer was linked to a time limit. Jafta tried to respond by sending an e-mail accepting the offer but in true IT style his laptop malfunctioned. With the deadline looming he then reverted to an internet café. Unbeknown to Jafta he was trumped by a glitch in the internet and his e-mail vanished in cyberspace.

Not having heard from Jafta an outgoing employee of Ezemvelo sent Jafta an urgent SMS urging him to reply. Jafta responded by SMS that he had done so earlier in the day by means of e-mail and that he had accepted the offer of employment. The outgoing employee then assumed that the e-mail that Jafta had sent from the internet café, which had gone astray, had been captured in the Ezemvelo systems and left the organisation without informing them about the SMS sent by Jafta.

Wildlife not having supposedly heard from Jafta Wildlife then employed the next suitable candidate. Jafta took Ezemvelo to Court and won. It is accordingly essential that organisations keep track of all digital communications. Records of e-mails and SMS’s should be kept for reference purposes should the need arise.

Pieter Rautenbach
Projects Facilitator


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