We have been banging the drum on this topic for many years. However, unfortunately, confusion persists regarding the legal requirements for sending electronic registered mail under Section 41(5) of the South African Schools Act (SASA).
For additional background, please see our earlier articles and videos:
- Are Registered Emails for Section 41(5) Letter Legal?
- NCA s 129(1)(a) notice – a practical perspective on the interpretative challenge
- The Legalities of Electronic Registered Mail
This article does not rehash the full legal arguement. Instead, it states our legal opinion and outlines practical steps schools should take to comply with the law when sending Section 41(5) Notices.
- What the Law Says
For convenience, we quote the two key legislative provisions:
1.1 Section 41(5) of the South African Schools Act 84 of 1996 (SASA)
“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.”
1.2 Section 19(4) of the Electronic Communications and Transactions Act 25 of 2002 (ECTA)
“19. Writing and signature
…
(4) Where any law requires or permits a person to send a document or information by registered or certified post or a similar service, that requirement is met if an electronic copy of the document or information is—
(a) sent to the South African Post Office Limited;
(b) registered by the said Post Office; and
(c) sent by that Post Office to the electronic address provided by the sender.”
- What the Law Means in Practice
From these provisions, we draw the following conclusions:
- Purpose of Section 41(5) Notice
The Section 41(5) Notice is an alternative compliance requirement (to Section 41(4)) that must be fulfilled before a school proceeds with legal action to recover outstanding school fees. - Judicial Scrutiny
Because Section 41(5) Notices are a prerequisite in legal school-fee collection matters, compliance is ultimately determined by a judicial officer—typically a magistrate—when legal action is instituted. - Allowed Methods of Service
Section 41(5) restricts valid service methods for these Notices to two:- Hand delivery (with proof of delivery), or
- Registered post (including its lawful electronic equivalent).
- ECTA’s Alternative for Registered Mail
Section 19(4) of ECTA expressly allows an electronic version of “registered post” if the process is carried out by the South African Post Office (SAPO). - SAPO as the Exclusive Authority
Section 19(4) is clear: electronic registered mail must be “registered by the said Post Office” and then sent by that Post Office to the recipient’s electronic address. No other entity may replace SAPO’s role in providing legally valid electronic registered mail.
- Attempts to Provide Electronic Registered Mail
3.1 SA Post Office (SAPO)
SAPO initially tried offering electronic registered mail around 2016, but technical issues scuppered this effort, while later financial and infrastructural challenges (eventually leading to the business rescue) derailed further efforts. However, in 2024, after a shaky start, SAPO appears to have launched a workable electronic registered mail solution, potentially fulfilling Section 19(4) of ECTA.
3.2 Registered Communications
Registered Communications (a private company) provides an electronic email service with a “verification of sending” feature. Historically, they claimed compliance with Section 41(5) and once stated they were SAPO-authorised. In 2024, they said that they no have SAPO authorisation claim but continue to assert legal compliance with Section 41(5).
3.3 Legalserve
Legalserve (another private company) also purports to be SAPO-authorised for electronic registered mail, even after SAPO introduced its own service. However, according to SAPO, while Legalserve is authorised for physical normal and registered mail, it is not authorised for electronic registered mail.
- Our Legal Opinion on Authorisation
SAPO clearly has authority under Section 19(4) of ECTA.
In our view, Section 19(4) requires SAPO itself to handle the electronic registration and sending of any document that must legally be served by registered mail. If a private provider’s system does not actually use SAPO to register and deliver the document, then it does not meet the definition of “registered post” under ECTA. Whether done via a SAPO-branded platform or a formal partnership/integration arrangement, the crucial point is that SAPO must be the entity registering and transmitting. Without SAPO’s involvement, the service would likely fail ECTA’s requirements.
- Other Legal Considerations
- No “Safety Net” Provision in Section 41(5)
Unlike the National Credit Act (NCA) notices (Section 129(1)(a)), where Section 130(4) offers a fallback if notices are defective, there is no equivalent “fix” for non-compliance under SASA Section 41(5). If a court finds the Notice was improperly served, the school must restart the entire legal process. - Parent Domiciles
Parents are jointly and severally liable for public school fees in terms of SASA. They need not have personally signed documentation choosing an address for service to be held liable. Therefore, many parents who are liable for school fees have not signed a document choosing a domicilium (physical and/or email), which can be a challenge in proving that you are authorised to use their email address for Section 41(5) Notices.
- Practical Recommendations for Schools
- Admission Documents
Include a clause in admission forms (or similar documents) where parents explicitly select:- Their physical address, and
- Their email address,
as chosen addresses for legal document service.
- Use Only Legally Recognised Delivery Methods
To minimise the risk of non-compliance, send Section 41(5) Notices only by:- Hand delivery (with a reliable witness or signed acknowledgement), or
- Registered mail (physical or electronic) through SAPO.
Although private providers may offer “verification” services, unless they are officially authorised by SAPO for electronic registered mail, schools risk a court finding the method does not meet the legal standard.
Conclusion
Given the high stakes—where non-compliance forces a school to restart the litigation process—public schools should ensure strict adherence to SASA and ECTA requirements when sending Section 41(5) Notices. At present, the only safe options are hand delivery or SAPO’s registered mail physical or electronic ( as set out in Section 19(4) of ECTA)).
If you have further questions about your school’s collection processes or the legalities of electronic registered mail, we recommend seeking qualified legal advice.
Brett Bentley