The High Court Rules of South Africa have been amended so that from the end of July 2012, parties will be able to serve documents or notices on each other via facsimile or electronic mail. Before this this change, documents had to be served on the other party’s physical address or the physical address of the party’s appointed attorneys. The Amendment was published by The Department of Justice and Constitutional Development in the Government Gazette No. 35450 on 22 June 2012.

A new Rule 4A has been added and provides that all subsequent documents or notices which do not fall under rule 4(1)(a), can be served in a variety of manners, including via facsimile or electronic mail. Rule 4(1)(a) regulates the service of documents initiating proceedings and accordingly this new amendment does not apply to the service of any documents initiating proceedings which must still be carried out by the Sheriff of the court. However, from the end of July 2012, it will no longer be necessary to serve subsequent documents through the Sheriff of the court and they can be emailed, faxed, hand delivered or posted by registered post.

The new Rule 4(A)(3) ensures that Chapter III, Part 2 of the Electronic Communications and Transactions Act No. 25 of 2002 (ECTA) applies to service by facsimile or electronic mail. Therefore, an agreement concluded by means of a data message is legally enforceable and is regarded as having been sent when it enters the information system outside the control of the originator. Further, a data message is deemed as having been received by the addressee when the complete data message enters an information system designated or used by the addressee and is capable of being retrieved and processed by the addressee. An acknowledgement of a data message is not necessary to give legal effect to the message, although this may assist evidentially.

Rule 17 has been amended to provide, amongst other matters, that a summons shall set out the attorney’s physical and postal addresses and where available, the facsimile number and the electronic mail address. In addition, the plaintiff may indicate the preferred manner of service (including via facsimile or electronic mail) in the summons and the defendant may also, at the written request of the plaintiff, consent in writing to the exchange or service by the parties of subsequent documents by way of facsimile or electronic mail. If the defendant refuses or fails to consent to such request, the plaintiff may apply to court for such consent to be ordered.

The amendment of Rule 19 provides that the defendant may indicate the preferred manner of service in the notice of intention to defend. The defendant may, in writing, request the plaintiff to consent to the service of subsequent documents and notices by way of facsimile or electronic mail. If the plaintiff refuses or fails to deliver consent then the defendant may make an application to court to grant such order.

These amendments should improve the efficiency of litigation in South Africa although it remains to be seen what challenges may arise regarding the receipt or transmission or timing of receipt of documents which are sent by one of the newly allowed methods of delivery. For example, emails may be blocked by anti-spam or anti-virus software or may bounce back and therefore not be seen by the recipient. However, ECTA provides that a data message is regarded as having been received when the complete message enters into the information system.