While many people are by now aware that electronic communications are considered to be ?in writing? as a result of the Electronic Communications and Transactions Act no. 25 of 2002 (ECT Act), the reality is that many magistrates only feel comfortable when they receive documents on paper. This is somewhat ironic as often the electronic document actually has more information (called meta-data) which is associated with the electronic communication but is not normally read by the ordinary computer/cell phone user.

One of the things that tends to assuage these fears is high court precedent. When someone above the food chain from magistrates indicates that electronic communications are as much ?in writing? as a paper-based document, magistrates tend to be much more comfortable with accepting electronic communications (even if they still want them reduced to paper for the court proceedings).

Enter Mafika Sihlali vs South African Broadcasting Corporation Ltd (SABC). This matter which was before Judge Andre van Niekerk in the Labour Court in Braamfontein dealt with resignation by means of SMS. Essentially the facts were that on the 25th August 2007 the Applicant (Sihalali) sent an SMS to the SABC?s group chief executive (Dali Mpofu) that he ?quit with immediate effect?. Subsequent to this SMS the Applicant had employee?s remorse and decided to withdraw his resignation by means of an email (on the 11th October 2007) where he indicated that his
?contract still subsists. You should proceed with your disciplinary charges within the next 14 days. Otherwise I will take it as repudiated?.

The SABC (Respondent) refused to allow the Applicant to come back to work contending that he had resigned. In challenging this decision, the Applicant claimed that:

1. An SMS is not a valid ?notice in writing? to terminate the employment contract, and
2. He withdrew his resignation before it was accepted by the SABC and as such there was no valid resignation.

The final irony of the matter was that the Applicant was actually employed as the Head of the Legal Department at the SABC and was a qualified attorney.

From this case we can learn three main things:

• An SMS is considered to be ?in writing? and the only way this can be varied is to agree otherwise in your contract (i.e. stipulate that all notices must be on paper);
• Unlike normal contracts, the resignation of an employee does not have to be accepted by the employer to be effective; and
• Never be your own attorney.