E-mail Communication for Provisional Sentence Summons

Roy Samuel Lekala


Traditional rules of evidence deny the admissibility of data messages on the mere ground that it is digitised. The South African Electronic Communication and Transaction Act (ECT) was enacted to enable the courts to admit data messages. South African legislation in this regard has followed a similar approach taken by the United Kingdom, the United States, Canada and the Model law. The use of electronic documents as evidence in court initially posed a number of conceptual challenges to the traditional statutory and common law in South Africa. On a close reference to provisional sentence summons in civil courts, South Africa has not yet amended the rules of civil practice to accommodate modern technology, for example, electronic discovery. The success of provisional sentence summons as one of the civil procedures to recover a debt is highly dependent on the liquidity of a document. Clearly, the authors of the definition of a liquid document may not have anticipated the development of technology to the extent that the traditional paper can be replaced completely by the electronic document. This paper seeks to discuss the challenges that may be faced by the courts when determining the admissibility of e-mail communication for the purpose of granting provisional sentence in South African civil courts. The ECT Act excludes liquid documents such as cheques and promissory notes. Therefore the focus of the paper is to discuss whether the requirements of a liquid document for purpose of provisional sentence summons can be met through the use of an e-mail evidence and the challenging aspects in that regard.  

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JICLT is a member of the Directory of Open-Access Journals (www.doaj.org). ISSN: 1901-8401.