Several private companies are offering public schools the facility to send “electronic registered mail” to comply with the notice required in term of Section 41(5) of the SA School Act. This article will look at whether this is a legally acceptable method of delivery.
The relevant provisions read:
“41. Enforcement of payment of school fees.—
(1)A public school may by process of law enforce the payment of school fees by parents who are liable to pay in terms of section 40.
(5) Despite subsection (4), a public school may act in terms of subsection (1) if—
(a)that school can provide proof of a written notification to the parent delivered by hand or registered post that the parent has failed to apply for exemption contemplated in section 39; and (b) despite the notice contemplated in paragraph (a), the parent fails to pay the school fees after a period of three months from the date of notification.” Therefore the sending of a Section 41(5) is generally a prerequisite to instituting legal action against a parent who has not handed school fees or applied for an exemption. The prescribed method of delivery is either hand delivery or registered post.
The section of South African law in which our courts, including our Apex court – the Constitutional Court – have dealt extensively with the requirement of sending a notice by registered post is Section 129(1)(a) of the National Credit Act and this article draws on the content I wrote on Notices in terms of Section 129(1)(a) of the National Credit Act, which appeared in the April 2019 edition of De Rebus, the official SA attorneys magazine.
The problem with using conventional registered post is that not only is it costly but it has a poor collection rate. In the case of ABSA Bank Ltd v Mkhize and Another and Two Similar Cases 2012 (5) SA 574 (KZD) the judge remarked:
‘I have also been provided with an affidavit by an attorney who attends to ABSA’s home loan and asset and vehicle finance matters in Pretoria. He too has not kept detailed statistics but estimates that 70% of the registered s 129 letters his office sends out are returned unclaimed.’
However, a potential solution to this challenge is found in s 19(4) of the Electronic Communications and Transactions Act 25 of 2002 (ECTA), which states:
‘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.’
If this provision were in operation, it would allow e-mails or even electronic text messages such as SMSes, to serve as valid s 41(5)(a) notices.
Therefore many were excited by the South African Post Office’s (SAPO) announcement in May 2016 that it was launching ‘eRegistered Mail’ (www.fin24.com, accessed 22-2-2019). Unfortunately, based on various meetings with sales representatives of SAPO and other players in the communications industry over two years, it is, my opinion, that SAPO itself is not confident in the service as it is practically cumbersome and based on ‘pull’ as opposed to ‘push technology’. It is, therefore, no surprise that the general public has not embraced nor made much use of it since inception.
There are, as previously mentioned, several private companies currently claiming to offer viable ‘push technology’ solutions. Based on the use of such products, I believe at least one may be a potential answer to ensuring electronic service of legal notices while maintaining a sound evidentiary trail. The challenge lies with s 19(4) of ECTA. While many service providers claim SAPO’s endorsement, the communications –
- do not appear to be sent by the sender to SAPO as required; and
- do not appear to be sent by SAPO to the electronic address provided by the sender.
Additionally, there is some uncertainty as to whether SAPO registers these electronic communications.
Therefore, a gap exists, which could be resolved by SAPO either partnering with an efficient service provider or providing a service of comparable quality, to achieve the goal of ensuring compliance with the ECTA. This would be of benefit not only with NCA compliance but serve a similar purpose with other legislation referring to registered mail.
Also, there are many challenges unique to public schools:
- Not many schools have incorporated email addresses/cell phone numbers as chosen domicilium in their admission documents for parents, which is prerequisite to be able to send documents via electronic mail;
- as public school fees are a statutory obligation and not a contractual one, a non-custodian parent may not have signed any form of admission document and therefore not have chosen a domicilium of any form;
- The SA Schools Act does not have the same safety net as the National Credit Act. In the NCA where a creditor provider uses electronic communication for S129(1)(a) Notices, it may, if a court does not accept the electronic communication as not complying with Section 19(4) of the ECT, ask the court for an order in terms of Section 130(4)(b) of the NCA. The order would be one in which they can adjourn the court matter while they redo the S129(1)(a) Notice in the manner ordered by the court and until the necessary day notice has expired.
The SA School Act does not have any similar provision to Section 130(4)(b). This means in a similar situation of a court rejecting the electronic sending of Section 41(5) notice, it would result in a fatal defective notice and they would have to withdraw the action, potentially paying the other side’s costs and having to redo the Section 41(5) Notice and lose at least 3 months plus in the process.
Therefore, while I strongly believe that electronic registered mail is the future of registered post in South Africa but that currently, it is too risky for public schools to use these services without either:
- the full co-operation and endorsement of the SA Post Office; or
- a High Court judgment supporting the use of electronic mail visa one of these service providers as complying with Section 19(4) of the ECT.