The Labour Court (in Jafta v Ezemvelo KZN Wildlife (D204/07) [2008] ZALC 84 ; [2008] 10 BLLR 954 ; (2009) ILJ 131 (1 July 2008)) has recently confirmed that you can conclude a contract by email and SMS. This is not really anything new. Since the Electronic Communications and Transactions Act (“ECT Act”) came into effect it has been possible to do this. It is nice however to see a court actually applying the sections of the ECT Act.

So for example, you offer someone a job by email. If you receive the acceptance of that offer by email, then a contract of employment is concluded. In addition, if you follow up with the person by SMS because you have not received an acceptance and you receive a reply accepting the offer by SMS, then a contract of employment is concluded.

When it comes to receiving the acceptance, you have received it even if you don’t know that you have received it. Its regarded as received when it enters your information system and is capable of being retrieved and processed. Scary isn’t it!

It was always intended that an email and SMS should fall within the definition of a “data message” (as defined in the ECT Act) and it is great to see a court consider it and come to the same conclusion.

So you can now conclude contracts that are valid and binding by email and SMS with confidence. There are however some tricky related legal and technical issues that you should be aware of. There are some steps you can take to ensure you are not put at a disadvantage.

You must also be careful not to inadvertently conclude a contract by email or SMS. Don’t end up like Ezemvelo KZN Wildlife, where they employed someone when they did not think that they had. Ended up being a costly mistake.