IN THE LABOUR COURT OF SOUTH AFRICA HELD AT …

1 IN THE LABOUR COURT OF SOUTH AFRICAHELD AT DURBANCASE NO: D204/07 ReportableDate Heard: 19 20 May 2008 Delivered:1 July 2008In the matter betweenS. B. JAFTA APPLICANTandEZEMVELO KZN WILDLIFE RESPONDENTJUDGMENTPILLAY D, acceptance of an offer of employment sent by e mail or short message service (SMS) result in a valid contract? When is an acceptance of an offer sent by e mail or SMS received? Is an SMS an electronic communication? What is an electronic communication?

2 To answer these electronic commerce or e commerce questions that arise in this claim for contractual damages, the COURT looks to the Electronic Communications Transactions Act No 25 of 2002 (ECT Act). As the ECT Act has its origins in international law, the COURT also 1 looks to international and foreign law for best B Jafta, the applicant employee, responded to a job advertisement from Ezemvelo KZN Wildlife ( Wildlife ), the respondent. At his job interview on 5 December 2006, Wildlife offered Jafta the position of General Manager: Human Resources.

3 He explained to his interviewers that he would be on leave from 22 December 2006 to 8 January 2007, that he was obliged to give two months notice to resign to his employer, the Eastern Cape Parks Board (ECPB), and that he would only be able to give such notice after he returned from leave. He could not rearrange his leave without incurring losses for himself because his leave had been approved. Besides, he had paid for a vacation in s Human Resources Officer, Cynthia Phakathi, e mailed the job offer to Jafta on 13 December 2006.

4 Jafta wanted to accept the offer but with a later commencement date of his contract. Wildlife wanted him to start working on 1 February 2007. He did not want to leave ECPB without giving proper was about to go on leave when he received the offer on 13 December On 28 December 2006 he received by e mail a letter dated 27 December 2006 urging him to respond to Wildlife s offer of employment2 by the end of December 2006. The Chief Executive Officer of Wildlife, Mr Khulani Mkhize, the author of the letter, emphasized that the commencement date of the contract was non Exhibit A10 112 Exhibit A16 172 he was on leave, Jafta had to use his laptop to respond to the offer.

5 When he tried to e mail this response, his laptop malfunctioned. He found an internet caf in Pietermaritzburg. With the help of a student employed at the internet caf , Jafta e mailed his response as an attachment to Phakathi s mailbox on 29 December 2006 at 7:51pm. Wildlife denies that it received this e 29 December 2006 Jafta received an SMS from Phakathi stating the following:3 Due to operational requirements of EKZNW the GMHR must start on 01/02/07. Failing to confirm the offer will be given to the next candidate.

6 Pls respond. Cynthia . alleges that he replied by SMS as follows: 4 Have responded to the affirmative through a letter emailed to you this evening for the attention of your CEO. Had problems with email I had to go to internet caf . admits receiving the SMS but does not recall seeing the word affirmative in it. She disputes that the SMS amounted to an acceptance of the offer. She understood it as being no more than a communication to inform her that Jafta had e mailed his response to her offer of employment. Analysis of COURT has first to determine whether Jafta s or Phakathi s version of the text of the SMS is more probable.

7 3 Exhibit A204 Exhibit A193 making this determination the COURT is satisfied that all the witnesses gave their evidence honestly and to the best of their recollection. In response to questions from the COURT , Attorney Mr Jafta submitted that Wildlife had engaged in foul play by denying that it received the letter of 29 December 2006. That averment was never pleaded nor put to any of the witnesses. Nor does the tenor of the evidence have even a whiff of foul play. On the contrary, if Wildlife had second thoughts about employing Jafta, it would not have reminded him by e mail on 28 December 2006 and again by SMS on 29 December 2006 to indicate his acceptance of the offer.

8 After the deadline for acceptance of the offer expired, Wildlife tried to contact Jafta as it allegedly could not retrieve his e mail. However, as Jafta was in Mozambique, Wildlife could not contact him. The COURT is satisfied that Wildlife did not dishonestly deny receipt of the e , too struck the COURT as a cautious, meticulous official who prided himself on his integrity and keen sense of propriety. After Wildlife informed him that it had appointed someone else, noting the text of his SMS was important. He kept the message on his cellular telephone for a while and noted the SMS before the telephone was quoted the text of the SMS in the documents before the COURT .

9 Phakathi deleted Jafta s SMS the same day. She conceded the correctness of the wording of both SMSs quoted above, save for the word affirmative appearing in Jafta s did not take issue with Jafta s inclusion of the word affirmative in its response to Jafta s Request for Further Particulars for Trial. Phakathi disputed at the trial for the first time that the word affirmative was in Jafta s did not notice the word affirmative in Jafta s Request for Further Particulars for Trial and probably also did not notice it when she received the SMS.

10 When she received the SMS and when she responded to the Request for Further Particulars for Trial, she focused on the gist of the message, namely, that Jafta had responded to the offer by e mail and that Wildlife had to look out for his e mail sent from an internet caf address. also recorded the time at which he received and sent each SMS. To Jafta s request for Further Particulars for Trial, Wildlife responded that Phakathi received the SMS from Jafta about 17h30. Jafta obtained a printout of his cellular telephone records from Vodacom s Forensic Services Division and confirmed that he in fact sent the SMS at 20h33, as he the circumstances the COURT prefers Jafta s account of the contents of the E aspect of the evidence related to whether Wildlife received Jafta s e mailed letter of acceptance.