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CONTRACTING VIA SMS
It is often assumed that a contract of employment has to be in writing to be valid. Although this is not the case and contracts can be concluded verbally, there are other important requirements for an offer and acceptance of a contract to be valid. Advancement in electronic communication technology has created new opportunities for contracting and our lawmakers have taken cognisance of this fact. But can one contract via SMS?
The Basic Conditions of Employment Act requires an employer to provide an employee with certain prescribed particulars in writing. This does not mean that a failure to do so invalidates the contract. In terms of our common law a contract of employment is concluded when the contracting parties reach consensus on the essential terms: the prospective employer makes an offer of employment and the contract becomes effective as soon as that offer is accepted by the prospective employee. Importantly then: What constitutes a valid offer and acceptance?
In the labour court case of Jafta vs Ezemvelo KZN Wildlife a prospective employee, Mr. Jafta, was offered a job and he was required to respond by a certain date. After having some difficulty sending an email via his laptop and then from an internet cafe, Mr. Jafta then accepted the offer via short message service (SMS). Ezemvelo KZN Wildlife (the employer) denied having received the email and argued that the SMS did not amount to a valid acceptance of the offer of employment. In an interesting judgement, the court examined not only the requirements for a valid offer and acceptance, but also recent South African legislation pertaining to electronic communication.
The common law requirements for a valid acceptance of an offer are that:
· the acceptance must be unequivocal;
· it must correspond with the offer;
· it must be made in the mode prescribed by the offeror, and
· it must be communicated to the offeror.
The Electronic Communications & Transactions Act of 2002 (ECT Act) provides that an electronic data message is regarded as having been sent when it has entered an information system outside the control of the originator. For the data message to be regarded as having been received, however, two requirements have to be met: Firstly, the data message must enter an information system designated or used for that purpose by the addressee and secondly the addressee must be able to retrieve and process it.
Based on the facts of the case, the court found that although Jafta had sent the email message, the employer had not received it because it had apparently gone astray and had not entered the information system of the employer. The email message was therefore not successfully communicated.
It was common cause that the employer's human resources officer had received the SMS and the employer's legal representative conceded it was indeed a data message as defined by the ECT Act. However, the employer disputed the validity of the SMS as a valid means of communicating acceptance of the offer of employment. The basis of the argument was that:
· the SMS was not an unequivocal acceptance of the offer;
· the human resources officer who received it did not have the authority to conclude a contract via SMS, and
· an SMS was not an appropriate mode of communicating acceptance of an offer.
The court found that by requesting a response from Jafta via email and SMS, the employer had signalled that the mode of acceptance of the offer may also be via email and SMS. As the parties had not specifically agreed to exclude the electronically generated exchange of offers, counter-offers and acceptance thereof, the rules set out in the ECT Act applied by default.
The court concluded that the acceptance of the offer by SMS was valid and that a contract of employment had come into existence. The employer repudiated the contract and damages were awarded for 15 months' past loss of earnings and 36 months' future loss of earnings.
The court pointed out that, while emails and SMS's and the language of the text messages they carry may seem informal, treating them as having no legal effect could be a mistake.
Jan Truter of www.labourwise.co.za
www.labourwise.co.za is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via the website or info@labourwise.co.za.