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Posted 24 October 2023

Tsakane Khuzwayo

Traditionally, most legislation and related regulations required delivery of court notices and documents via physical registered post or by the Sheriff. However, there appears to be a shift toward exploring digital delivery methods.

Section 129 of the National Credit Act requires credit providers to give written notice of default to consumers and to provide them with a list of possible remedies to overcome the default. Section 130(1) of the Act then stipulates that credit providers may not institute legal proceedings to enforce credit agreements prior to delivery of the notice in terms of section 129 as aforementioned.

Section 65(1) of the Act provides that:

“Every document that is required to be delivered to a consumer in terms of the NCA must be delivered in the prescribed manner, if any.”

Subsection (2) then specifies that, if no method is prescribed for delivery of a particular document, delivery may occur by fax, email, or printable webpage.

Clearly, this legislation acknowledges the validity of delivery of notices by email, provided that there is no prescribed method of delivery required by this or another Act.

Prior to the implementation of the National Credit Amendment Act 19 of 2014, the National Credit Act did not stipulate how the section 129 notice should be delivered to consumers. However, the Amendment Act came into operation in 2015 and section 129(5) then prescribed that the default notice should be delivered to a consumer either by registered mail, or personally to an adult person at the address specified by the consumer and in the manner specified in writing by the consumer.

The Electronic Communications and Transactions Act 25 of 2002, which regulates and facilitates electronic communication and transactions in South Africa states, in section 19(4), that:

“Where any law requires or permits a person to send a document or information by registered or certified post or similar service, that requirement is met if an electronic copy of the document or information is sent to the South African Post Office Limited, is registered by the said post office and sent by that post office to the electronic address provided by the sender.”

Therefore, where the NCA has prescribed that delivery of a document may take place by way of registered mail, in terms of section 19 of the ECT Act, this requirement will be complied with if the electronic copy of the document or information is sent to the South African Post Office Limited, is registered by the said post office and sent by that post office to the email address provided by the sender.

The court approved judgment applications in the cases of FirstRand Bank v Ngcobo case no 24661/2009 NGHC, where the s129 notice in terms of the National Credit Act was delivered via email rather than by registered post. The court acknowledged in the Ngcobo decision that email delivery of the s129 notice constituted valid delivery.

It appears that sending a s129 notification by way of digital communication now constitutes legal and effective delivery. In comparison to traditional methods of delivery such as registered post, digital communication is faster, more cost effective, and more reliable. Furthermore, a digital track and trace receipt is provided with the digital delivery of a document, which serves as further evidence that the relevant document was transmitted.

Given technological developments and legal recognition, it will not be long before email is regarded the new form of registered mail, and the party’s email address is utilized as a domicilium address to effect service for court process.