"e-registered mail" - is it a good or bad thing?

When I was referred to the News24 user opinion authored by “No Ohno” wherein he or she commented on the new service of e-registered mail on offer by the SA Post Office, I recognised much of the scepticism I too held on the concept, before I had fully researched what is in fact on offer.

A while before the actual launch of this service, the Department of Telecommunications & Postal Services tweeted that it was coming and that the service was compliant with Section 19(4) of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002), abbreviated to the ECT Act.

This provision states 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.” (my emphasis).

I immediately took issue with this and thought to myself “how could it have been enacted that it could be deemed legally sound that the requirement for registered mail in an email format could be deemed to be served if anyone could simply make up an email address to which to send such an e-registered mail?”

After all, it should be no secret that criminals already use free email account providers to send emails purporting to be all sorts of things in order to defraud unsuspecting and/or gullible people.

Given the fact that the debt collection industry as well as some in the legal profession and indeed, in law enforcement authorities and State Owned Corporations are full of unscrupulous operators who will do anything to achieve their objectives it would be naïve at best to assume that shysters would not simply go and set up free email accounts and send e-registered mail to themselves and then claim that they had been legally served.

But it turns out that, whether it was intentional or not, the SA Post Office has addressed this issue by making its e-registered mail offering an opt-in service where e-registered articles would be delivered directly to its own service and into the mailbox it provides to each registered user.

From what I have been able to determine by researching the SAPO “digital post” website, when a notification to the effect that an e-registered mail is sent to anyone at any email address and who is not registered with it, that person is invited to go and register for a “free” SAPO digital mail account whereat the e-registered mail is stored and may be read.

Should that person subsequently register a SAPO digital mail account, the Post Office is in full control of the situation and may; and apparently has included functionality which provides audit trails of not only delivery, but the reading of such articles.

The issue that No Ohno raises with regard to “how will the Post Office proof that if they send me that registered email, that I have received it, and read it” is actively addressed by the fact that one needs to register an authenticated user account on the SAPO’s digital post server and it would be extremely difficult, if not impossible to convince a Court that you then gave your logon details to someone else and were therefore unaware of the e-registered article and its contents.

My view is that the Courts will actively embrace this technology since it is in fact significantly better than conventional registered post. With the conventional version, while a person or entity has the ability to prove that the registered letter was received by the recipient, they have no way of proving that the person actually read it.

This service therefore completely transforms the way in which registered post is used to achieve legal requirements and provides significant advantages to those who use it to serve registered items on people.

But, like with most things, the method of serving documents via e-registered mail/post is not without loopholes. There is nothing contained in any South African legislation which compels anyone to register with the SAPO’s digital post service, much less is there any legal requirement for any person to even have access to the internet.

If there were to be, then Government and/or the SAPO would not only have to provide free access to the internet to each and every South African anywhere, but they would also have to provide people with the devices used to access the internet. The latter simply won’t happen, despite the widespread rollout of free WiFi access which has taken centre stage in many metropolitan municipalities recently.

So where a person takes the decision not to register for a SAPO digital mailbox, conventional registered mail would have to be reverted to and we are back to square one where service can be proven, but the reading thereof cannot.

I am a huge fan of personal service of legal documents where the process server is obliged to explain the import of any document they serve on another person. While I am acutely aware of the fact that few process servers actually do explain the import of any document they serve, there are ways of dealing with that when the matter comes before a Court of law.

On a personal level and however, I am not strictly opposed to the service of, for instance, the service of documents required to be served by registered mail in terms of the AARTO being served digitally through e-registered mail. Justice Project South Africa, which I head is also not opposed to it.

You see, in my capacity as proxy for a sizable business entity, I like to exercise my right to nominate the driver of the company vehicle concerned and I am only allowed by law to do so within the first 32 days from service of an infringement notice by registered mail.

The sooner I become aware of the fact that one of the employees of that business has incurred an infringement notice, the sooner I can deal with it and get that infringement notice cancelled against the name of the business, and me as the proxy, and make it the problem of the person who actually allegedly committed the infringement.

There are also advantages for ordinary vehicle owners who, if they are properly served with infringement notices, can exercise any one of five different options when they are served with those notices, one of which is to “take advantage” of the 50% discount which applies within the first 32 days of service of an AARTO infringement notice.

Currently, everyone is denied these “options” because the issuing authorities and the RTIA have taken it upon themselves to utilise a service called “secure mail”, which is not registered mail and differs substantively from registered mail in its operation. The RTIA then relies on the provision of Section 30(2) of the AARTO Act which holds that “A document which is sent by registered mail in terms of subsection (1), is regarded to have been served on the infringer on the tenth day after the date which is stamped upon the receipt issued by the post office which accepted the document for registration, unless evidence to the contrary is adduced, which may be in the form of an affidavit”.

They then perform a mathematical calculation to determine when the document would be regarded to served and apply the provisions of the AARTO Act which, amongst other things, removes the 50% discount and the ability to nominate the driver, if you were not the driver.

It is for this precise reason, amongst others that Justice Project South Africa has taken the JMPD, TMPD, Department of Transport and RTIA to Court after failing to get them to see reason and stop violating the provisions of Section 30(1) of the AARTO Act which states that “Any document required to be served on an infringer in terms of this Act, must be served on the infringer personally or sent by registered mail to his or her last known address”.

They seem to be of the opinion that the peremptory words “must be” entitle them to interpret this provision as being “registered mail, or a similar service” which of course, it does not and we therefore submit is unlawful. It’s going to be interesting to say the least to see what legal gymnastics and creative explanations their lawyers come up with.

None of this however alters my view that e-registered mail, as it is apparently being offered by the SAPO is going to be a good thing. Section 19(4) of the ECT Act is obviously in dire need of amendment but the harm it has the potential to cause has, I believe, been largely mitigated by the actual implementation of the actual e-registered mail service.

As the saying goes, “Knowledge is power. Ignorance is bliss. Tough choice”.

Howard Dembovsky - Chairperson - JPSA

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