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April 28, 2016

What is the legal effect of sending an SMS, instead of a letter, fax or email, to give notice or enforce a contract?

A colleague of mine, Andrew Marshall, of Dingley Marshall Attorneys, wrote this most interesting article: http://www.dingleymarshall.co.za/notice-sms-law/, which he’s happy for me to share.
A “data message” like an SMS has the same status in law as a letter or other “real world” medium of communication. Although there is nothing in law to prevent using SMS, we would recommend avoiding it for anything important, because of the problem of proving receipt.
 “We have all received SMSes from businesses offering their services to us. Often when these messages are unsolicited we consider them to be spam and block the number, or even complain to WASPA or perhaps the DMASA about them. But if we are in a commercial relationship with one of these businesses, can they use SMS to send us notice or to enforce a contract?
The General Rule
As a general rule the law recognises “data messages” (as they are called) such as SMSes as if they were in “written” form. As section 11(1) of the Electronic Communications and Transactions (ECT) Act puts it, “Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message.”
If the law requires that a document or information be in writing, then that requirement is met if a data message is used, and the data message is “accessible in a manner usable for subsequent reference” (s 12 of the ECT Act).
This means that a “data message” like an SMS has the same status in law as a letter or other “real world” medium of communication.
So far so good, but does that mean that a business can send notice of breach if I haven’t paid my monthly account for example? Well that, as lawyers are fond of saying, depends. If the law has particular requirements for notice, then those requirements will trump the general law that the ECT Act sets out.
Before delving in into the detail, let us quickly look at receipt of SMSes. How can a sender show that an SMS has been received? Under the ECT Act it would probably be sufficient to show that the SMS has been received by the recipient’s mobile network service provider and can be accessed by the recipient. There is no case-law on this so this interpretation is not certain, and given that the mobile network service providers can be sticky about providing access to their logs, proof would be an issue. On an alternative interpretation one might need to show that an SMS has been downloaded onto the recipient’s cellphone, but this of course presents the same problem. The sender could certainly keep its own record of SMSes that it has sent, or it could draw logs from its OWN mobile network service provider to show transmission, but it could battle to prove receipt.
With that in mind let us examine a few areas of law.
Requirements of the National Credit Act
If the National Credit Act (NCA) applies to the underlying contract, such as a loan or a hire-purchase agreement, a credit provider wishing to enforce the contract must deliver a notice to the consumer setting out the consumer’s default and drawing the consumer’s attention to his or her rights. This letter of demand needs to comply with section 129 of the NCA, which prescribes the form and content of letters of demand for credit agreements.
Section 129 letters must be delivered to the debtor by the creditor, or an attorney acting on his/her behalf, before any legal proceedings can commence. Failure to do so is fatal to any legal proceedings where credit agreements are concerned. The letter itself must be delivered to the debtor at an address set out in the original credit agreement, or subsequently provided to the credit provider.
The NCA is silent on what medium should be used to deliver the document however. The available case-law deals with delivery by registered letter. If notice is not sent by registered mail, the NCA stipulates that notice has only been properly served on a debtor when it has been delivered to that person. However it is difficult to prove delivery of an SMS, as we discuss above. As a result, SMS is probably not an appropriate medium for delivery of these letters.
Delivery of any other document that must be provided to the debtor is dealt with under section 65 of the NCA. While the listed mechanisms include email, SMS is not included. Therefore, it appears that the NCA does not recognise SMS as a valid delivery method for these documents.
Note however that the NCA specifically states that “statements of amount owing” and “statements of settlement amount” CAN be sent by SMS.
Consumer Protection Act
Attorneys drafting the “notices” clause of an agreement normally state that notice is deemed to have been received by a party under certain circumstances. So for example if a notice is sent by registered post it could be deemed to have been received five days after posting, or if faxed it may be deemed to have been received on the date of transmission. This removes the necessity of proving receipt.
If the Consumer Protection Act (CPA) applies to an agreement, and the agreement is with a natural person (as opposed to a company for example) then it is presumed to be an unfair contractual term if a supplier deems that a consumer has received a communication, unless that communication is sent via registered post.
As a result if the CPA applies to a transaction, a supplier can certainly send a consumer an important notice via SMS if it really wants to, but it cannot assume that the consumer has received that notice. The supplier would have to prove receipt, which can be awkward.
General Contractual Notices
Note that the above is by no means an exhaustive treatment of the law. For example we have not examined the law relating to short-term insurance. However if a supplier wants to send you notice by SMS and the agreement is not covered by the NCA or the CPA, or any other relevant statute that we have not covered, then the position would be as follows.
The supplier can certainly send you notices in terms of the agreement between you, or even terminate that agreement using SMS if the agreement specifically allows it to. If the agreement deems the recipient to have received an SMS once it is sent, then the supplier would not have to prove receipt of the SMS.
If the agreement does not say when an SMS is deemed to be received, however, the supplier would have to prove receipt. As a result we would recommend that SMS not be used for any important contractual notice.
What if there is no written contract, or the contract does not mention SMS as a medium? There is nothing in law to prevent using SMS, but we would recommend avoiding it for anything important, again because of the problem of proving receipt.
Can invoices be sent by SMS? This is a bad idea for two reasons. The first is once again the problem with proving receipt. The second is that SARS has particular requirements for VAT invoices which an SMS does not meet.
There is no reason why a statement of account sent by SMS would not be acceptable, however.
Dismissal by SMS
As an extra titbit, can your boss fire you by SMS? There is certainly case-law to the effect that a notice of resignation sent by SMS is valid, and it seems that this would also apply to notice of termination sent by an employer. Naturally this assumes that the other requirements set out in our labour law have also been met.”

April 24, 2016

Stopped at a roadblock - what are your rights?

What to do if a cop flags you down
Know your rights and don’t be afraid to report incidents of intimidation either at your local police station or to:

Corruption Watch: http://www.corruptionwatch.org.za and/or

Justice Project: 087 809-0399 and https://www.jp-sa.org/.

Always have these numbers handy on your cell phone (that I suggest you save under ‘Lawyer’ or ‘Lawyer / Traffic’) namely your lawyer and the Anti-Corruption Hotline 0800 203 172.

These are your rights:

·         Police and traffic officers are within their rights to stop you at a roadblock, and you can’t refuse to be stopped and even searched. However, if you are wary, you may ask to see written authorisation for the roadblock from the National or Provincial Police Commissioner before you submit.  If, for any reason, you are not convinced of the validity of a roadblock, you can request to be taken to the nearest police station.
·         Police officers are required to have their names displayed on their uniforms. If this is not present, you may request the officer for his or her name and for proof of identify (appointment certificate). An officer who cannot or will not provide an appointment certificate on demand is in violation of the Criminal Procedure Act.
·         Often, things get out of hand. If the officer refuses to show you identification, remember that all official police vehicles have a code printed on the side. The letters represent the name of the station and the digits represent the squad car number. If you are being harassed, it is advisable to try to remember this code. Better still, if you think it is appropriate – given the police officer’s demeanour - use your phone to take a picture of the officer, his or her name tag (if displayed), the code and the vehicle’s licence number. Also tell him or her that you are going to call your lawyer and the Anti-Corruption Hotline, for advice. That often diffuses the situation
·         It is unlawful for a traffic officer to tell you that you have no option but to settle your outstanding fines, there and then, under threat of arrest. You cannot be detained unless there is a warrant for your arrest relating to an unpaid fine and the officer can show you a valid copy of the warrant. If he can’t and still wants to arrest you, call your lawyer immediately.
·         You can be detained until you pay an outstanding file for which there is a valid warrant for your arrest. Normally, the fine needs to be paid to a traffic department, and an official receipt should be issued. The only time you may be required to pay on the spot is at a roadblock where there is a formal cash facility.
·         A uniformed police or traffic officer has the right to stop any vehicle at any time. If you are stopped by the police, you are obliged to give your name and address, if required, and any other particulars concerning your identity.
·         In terms of the National Road Traffic Act, a traffic officer does have the authority to demand that you produce your driver’s license, which, by law, must be kept on you or in your car.
·         If a traffic officer asks you to sign for a traffic fine or summons to appear in court, just sign for it don’t argue.
·         If a law enforcement official wants to arrest you, don’t resist arrest, co-operate fully and remain calm. Do not flee or allow your first response to be an aggressive one. Never offer to pay a bribe. Should you resist arrest, the arresting officer may use reasonable force to arrest you.
·         If you are arrested, you have the right to:
o   Be taken directly to a police station (and not driven around, aimlessly);
o   Be informed promptly of the reason for being detained;
o   Be brought before a court within 48 hours of your detention.
o   Choose to, and consult with an attorney of your choice, and should you not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state, at the state’s expense, and to be promptly informed of such rights.
o   Communicate with, and be visited by, your spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner.
·         If he deems your car to be un-roadworthy, a police officer may order that you get out of the vehicle and stop using it, immediately. Alternatively, he may direct that you can use the car for a limited period or to reach a specific destination. He can remove the licence disc from the windscreen.
·         Police officers also have the right to search your car. However, if you feel endangered, you are within your rights to ask the police officer to accompany you to the nearest police station to do the search. This search is only allowed if the officers have a valid and reasonable belief that you may have been involved in the commission of a crime and that a search warrant would be issued by a magistrate or judge.
·         A police officer has the right to ask you to step out of your vehicle and search you, as well. However, a man may not search a woman.
·         If an officer suspects that you have been drinking and are over the legal limit, (0.05g/), note that:
o   You can’t unreasonably refuse to breathe into a breathalyser;
o   If the test shows that you are over the limit, the officer first has to take you to the nearest police station to open a docket reporting the facts of the case;
o   They must then take you to a mobile unit, clinic or hospital for blood to be drawn. You must insist on the use of sterile, clean equipment (opened in front of you) for drawing blood. Bear in mind that blood samples are valid only if they are taken within two hours of your being stopped;

o   Provided he or she can get there in time, you have the right to have you own doctor present when the state doctor or nurse takes your blood.