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Article 70/2021

Labour Edge

Does an exchange of WhatsApp messages constitute a settlement agreement?

  1. this transaction is governed by the Electronic Communications and Transactions Act 25 of 2002 (‘the ECTA’). Section 4 thereof provides that the ECTA ‘applies in respect of any electronic transaction or data message’. The ECTA does not define ‘electronic’ but it does define ‘electronic communication’ as ‘a communication by means of data messages’ and ‘data messages’ to include ‘data generated, sent, received or stored by electronic means’. Data means ‘electronic representations of information in any form’;
  2. there is no reference to a WhatsApp message in the ECTA nor is there mention of a short message service (SMS). However, the court, in Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC), at paragraphs [78] and [109], reflected that, while an SMS is not defined in the ECTA, it is ‘as effective a mode of communication as an email or a written document’ and was not without legal force and effect. This, too, was the purport of the judgment of the supreme court of appeal in Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Econowash and Another 2015 (2) SA 118 (SCA);
  3. likewise, a WhatsApp message is data-generated, sent, received or stored by electronic means and is, therefore, an electronic communication. Consequently, there is no reason why a text message sent via WhatsApp on a mobile device should not be considered to be a message. To hold otherwise ‘would be a mistake’ (data Jafta v Ezemvelo KZN Wildlife at para [78]). The text messages exchanged between Mr Van Gaalen (Mthethwa’s attorney) and Mr Mphahlele (Baroka chairman) on their cellular phones are accordingly ‘data messages’; and
  4. s11 of the ECTA provides that information is not without legal force and effect simply because it is in the form of a data message. Furthermore, s22 confirms that agreements formed from data messages have legal effect and are concluded at the time when, and the place where, the offeror receives acceptance of the offer. Section 24 goes on to say that, as between the originator and the addressee of a data message, an expression of intent or other statement is not without legal force and effect merely because it is in the form of data message.

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?