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
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
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