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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.

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?