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.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.