E-mail Communication for Provisional Sentence Summons

• Author: Roy Samuel Lekala
• Position: University of South Africa
• Pages: 145-150

JICLT

Journal of International Commercial Law and Technology

Vol. 6, Issue 3 (2011)

145

E-mail Communication for Provisional Sentence Summons

Adv R Lekala

University of South Africa

lekalrs@unisa.ac.za

Abstract: Traditional rules of evidence deny the ad missibility of data messages on the

mere ground that it is digitised. The South A frican Electronic Communication and Transaction Act

(ECT) was enacted to enable the courts to admit data messages. South African legislation in thi s

regard has followed a si milar approach taken by the United Kingdom, the United States, Canada

and the Model law. The use of electronic documents as evidence in court initially posed a number

of conceptual challenges to the traditio nal statutory and common law in South Africa. On a close

reference to provisional sentence summons in civil courts, Sout h Africa has not yet amended the

rules of civil p ractice to accommodate modern technology, for example, electronic discovery. The

success of provisional sentenc e summons as one of the civil p rocedures to recover a debt is highly

dependent on the liquidity of a document. Clearl y, the authors of the definition of a liquid

document may not have anticipated the development of technolo gy to the extent that the traditional

paper can be replaced completely by the electronic document. This paper seeks to d iscuss the

challenges that may be faced by the courts when determining the admissibility of e-mail

communication for the purp ose of granting provisional sentence in Sou th African civil co urts. The

ECT Act excludes liquid documents such as cheques and promissory notes. Therefore the focus of

the paper is to discus s whether the requirements of a liquid document for purpo se of provisional

sentence summons can be met through the use of an e-mail e vidence and the challenging aspects in

that regard.

1. Introduction

Information technology with its ability to store the infor mation in digital form is gradually replacing the u se of

traditional paper based documents. Computerized machineries, like cellular phones, can easily create electronic

documents and legal agreements may also be concluded on these devices. In all probability, a debtor may also

acknowledge his or her debt while on electronic communication. As a result a liquid document can be created

but as an electronic or data message.

The microelectronic technology that resulted from electronic communication brought about methods of

capturing, storing, retrieving and analysing information by computers

1

. Computer technology has revolutionized

the way we deal with information and the way we run our b usiness

2

. Increasingly, the important information is

being created, stored and communicated electronically.

The admissibility of co mputer generated-evidence in South Africa, for instance computer p rintouts, was first

dealt with in Narlis v. South African Bank of.

3

The respondent sued the appellant as suret y and co-principal

debtor in r espect of an overdraft debt. The bank records were computerized and were presented by the manager

of the bank as evidence. The appellate division held that the computer r ecords produced by the bank were

1

Jie ZHENG/E-mail Evidence Preservation: “ How to Balance the Obligation and the High cost”,Lex Electronica, Vol 14 n 2/ fall

2009, page 13, in his conclusion of the article, Jie Zheng said the following:“Electronic is now being routinely requested during the

course of litigation. E-mail as a distinctive type of electronic evidence, becomes more and more important in electronic discovery. In

order to fulfil the legal obligation to produce e-mail evidence by requesting party and reduce the risk of losing the case by failure to

provide evidence, companies are advised to preserve the relevant e-mail evidence.

2

Ibid.

3

Narlis v South African Bank of Athens 1976 (2) SA 573 (A