Metrofile Holdings Ownership

Litigator Ownership

Metrofile Holdings Limited has been listed on the JSE limited (“JSE”) since 1995 and its ordinary shares are quoted in the “Support Services” sector of the JSE. Metrofile is a black-owned Company with black ownership amounting to 53.36%. Its largest shareholder is its empowerment partner, Mineworkers Investment Company (“MIC”) which owns 34,41% of Metrofile’s equity.

Through the recent acquisition of 40% of Litigator, a unique cloud based litigation platform, the Group now also offers secure online filing and issuing of litigation documents, advanced electronic signatures and secure storage of litigation documents.

Other services include records storage and management, image processing, backup storage and management, records management, software and records management consultancy, business continuity and it continuity, file plan development, confidential records destruction, paper recycling, as well the sale and maintenance of a wide range of business equipment, including scanners, library security systems, mailing and packaging machines.

The Metrofile Records Management division is the market leader in both physical and digital information and records management in Africa and is represented in the six major provinces of South Africa, Botswana, Mozambique, Nigeria, Zambia and United Arab Emirates. It operates from 44 facilities, at 21 locations, covering more than 87 136 square metres of warehousing and office space. In accordance with its owner/lessee model, 68% of these facilities are owned by the Group. The rest of the Group’s divisions lease their premises.

The CSX Customer Services brand has contracts in numerous other African countries.

Litigator is a Cloud-Based Litigation Platform that provides:

1Storage of litigation documents in a secure cloud-based case registry
Users are able to register cases on the Litigator platform and invite all parties involved, to participate in the matter. Documents linked to the matter are separated into the following categories:
  • Pleadings
  • Notices
  • Applications
  • Expert statements
  • Discovery
  • Correspondence
  • Court orders

The documents are stored “in the cloud” and can be shared with opponents, clients, experts and correspondent attorneys. The case registry is available anytime / anywhere creating peace of mind when it comes to retrieving and viewing critical files and documents.

Opposing attorneys have a shared registry of documents applicable to a particular case.

Clients, correspondent attorneys, counsel and experts can be invited to participate in the case.

2Electronic Service and Filing of litigation documents
Instant Service and filing of documents coupled with automated certificate of service

lit

Documents are uploaded in pdf format and served on opposing attorneys instantly. The opposing attorney receives an email notification and the served document. An automatically generated certificate of service is then provided for by way of a URL link embedded in the served document.

Litigator is also able to file documents that have been served via the platform, at certain courts. Proof of filing will then be made available through the URL link where the return of service for that document is located. Please note that the filing service is available at selected courts only.

3Advanced Electronic Signatures
The Electronic Communications and Transactions Act (ECT Act) provides that where an original is required, that requirement is met if the document has an advanced electronic signature.

Litigator has integrated the ability to sign litigation documents, on the Litigator platform, using a Class 4 Advanced Electronic Signature.

In partnership with SAPO and Pitney Bowes, Litigator allows the user to make use of the provided AES, without having to leave the Litigator platform.

Litigator is a certified re-seller of CoSign and SAPO’s Class 4 AES.

4Preparation of Automated Court Notices
Users are able to make use of automatically generated Court Notices, which relate to the specific court and case in which the user is working.

The user simply selects on whom they wish to serve the Notice, sign it with the provided AES and click the serve and file button.

5Online Indexing and Pagination of court bundles through the Litigator patented software.
Preparation of professional indexes and impeccable pagination is a simple matter of dragging and dropping the required documents into the Index and Paginate box. The Litigator system produces an automated index containing the case details and, the indexed documents. The Litigator platform also produces perfectly paginated court bundles in a fraction of the time required for manual pagination. The user is able to adjust the Advanced Option settings to accommodate specific practices in different courts and jurisdictions.
6Terms and Conditions
LITIGATOR SUBSCRIPTION AGREEMENT

1. DEFINITIONS & INTERPRETATION
In this Agreement, except in a context indicating that some other meaning is intended:
1.1. “the Act” means the Electronic Communications and Transactions Act No. 25 of 2002, as amended;
1.2. “Activation Date” means the date upon which the Subscriber’s access to Litigator is activated by the Company;
1.3. “Advanced Electronic Signature” means an advanced electronic signature as defined in Section 1 of the Act;
1.4. “the/this Subscription Agreement” means these terms and conditions and any annexures, schedules and/or addenda hereto, as amended from time to time as permitted in accordance with its provisions;
1.5. “Case” means a litigious matter that is registered on Litigator;
1.6. “Charges” means the prevailing rates of Monthly Subscriptions and the other charges payable for the Litigator Services, as reflected on the Litigator website from time to time;
1.7. “Client” means a client of any User in respect of any particular Case;
1.8. “the Company” means Lexie Legal Services Proprietary Limited, registration number 2012/098375/07;
1.9. “Computer System” means a computer hardware (including a document scanner), software and internet system having the minimum capabilities to access Litigator and thereby access and utilise the Litigator Services;
1.10. “Counsel” means a User that is an advocate or acts as counsel in any Case;
1.11. “Court Document” means any litigious document to be Delivered in a Case, including notices, pleadings, discovery affidavits, pre-trial minutes and applications;
1.12. “day” means any day of the week, excluding Saturdays, Sundays and public holidays, unless specifically expressed to be calendar days;
1.13. “Deliver” means to Serve a Court Document on another party to a case and to have such Court Document Filed at Court or delivered to an arbitrator, in accordance with the appropriate Rules, and “Delivery” shall have an associated meaning;
1.14. “File” means to have a Court Document stamped by and filed at a Forum in accordance with the appropriate Rules, and “Filing” or “Filed” shall have an associated meaning;
1.15. “Filing Agent” means any of the Company’s agents duly authorised to receive Court Documents from Users electronically via Litigator and File them at the appropriate Forum;
1.16. “Forum” means any Court or other forum in which a Case is pending;
1.17. ”Initial Term” means a period of 12 months with effect from the Activation Date;
1.18. “Litigator” means the Litigator proprietary electronic internet platform via which the Litigator Services are accessed and utilised, and to which the Subscriber subscribes in terms of this Agreement and which uses IP address “www.litigator.co.za”;
1.19. “Litigator Certificate of Service” means an electronically generated printable certificate issued by the System which certifies the electronic Service of a Court Document on a party to a Case via Litigator;
1.20. “Monthly Subscriptions” means the monthly subscription charge/s payable by the Subscriber to access the System and utilise the Litigator Services;
1.21. “Termination Date” means the date upon which the Subscriber’s access to Litigator and use of the Litigator Services is terminated in accordance with the provisions of this Agreement, or otherwise by mutual written agreement between the Parties.
1.22. “Rules” means the rules that apply to any litigation that is being conducted through Litigator, including, without limitation: High Court Rules, Magistrates Court Rules, Labour Court Rules and any rules of arbitration that the parties thereto may adopt;
1.23. “Serve” means to serve a Court Document on another party to a Case, as envisaged by the Rules, and “Service” shall have a corresponding meaning;
1.24. “the Litigator Services” means the services provided via Litigator, namely the secure electronic exchange of Court Documents, the Filing of such Court Documents at the appropriate Forum, the electronic compilation and pagination of document bundles, messaging services, and ancillary and related services, as expanded on under clause 5 below;
1.25. “Subscriber” means the person that contracts with the Company for the allocation of access to Litigator and use of the Litigator Services, and which Subscriber, if a natural person, might also be a User;
1.26. “User” means any person who is licenced to use Litigator and access the Litigator Services, including a Subscriber;
1.27. expressions in the singular also denote the plural, and vice versa;
1.28. words and phrases denoting natural persons refer also to juristic persons, and vice versa;
1.29. pronouns of any gender include the corresponding pronouns of the other gender;
1.30. references to:
1.30.1. a “person” includes natural persons and juristic entities;
1.30.2. “months” means calendar months (e.g. January, February, March, etc.);
1.30.3. “days” means Court days, i.e. business days, excluding weekends and official public holidays.
2. SUBSCRIPTION
2.1 The Subscriber hereby subscribes for the Litigator Services and agrees to these terms and conditions, which shall govern all transactions between the Company and the Subscriber.
2.2 The person who captures the requisite fields for purposes of subscribing to this Agreement as a Subscriber and who clicks on the “I Agree” tab, warrants that:
2.2.1 he is duly and properly authorised to represent the Subscriber and bind the Subscriber to this Subscriber Agreement;
2.2.2 he is duly authorised to enter the banking details and authorise the debit order in respect of the charges payable by the Subscriber under this agreement on the Subscriber’s behalf in accordance with clause 3 below.
2.3 A Subscriber is entitled to add further Litigator licences to full time employees, directors or partners in its organisation, in regard whereto the applicable charges are payable by the Subscriber to the Company.
2.4 The Company reserves the right at all times to refuse to accept any person or party as a Subscriber, in its sole discretion.
3. SUBSCRIPTION TERM
3.1. The Subscriber’s licence commences on the Activation Date and shall continue thereafter on a monthly basis for the Initial Term, whereafter it shall be automatically renewed unless either Party affords the other written notice of termination the subscription, which notice must be received at least 1 (one) month before the end of the Initial Term, or any renewal thereof. A Subscriber is entitled to add further Litigator User licenses to its subscription or to remove such Litigator User licenses from its subscription, subject to the requirement that it shall, for the duration of the subscription period, always have at least one active Litigator User license.
3.2. Upon termination of the Subscriber’s subscription, for whatever reason, the Subscriber (and any other Users falling under the Subscriber’s subscription licence) shall no longer be able to access the System and/or utilise the Litigator Services. In such event it shall be the responsibility of the Subscriber (and all other Users falling under the Subscriber’s subscription) to:
3.2.1. ensure that all files and documents stored on Litigator are copied onto a Computer System, or another electronic storage platform or facility; and
3.2.2. ensure that it notifies all counterparties in relation to matters pending on Litigator that it will no longer be utilising Litigator with effect from the Termination Date, and it shall immediately thereafter make arrangements with such counterparties for the future Delivery of Court Documents in Cases,
and the Company shall have no obligations or liability to the Subscriber and/or other Users falling under the Subscriber’s subscription licence, nor shall the Subscriber and/or such Users have any claims or recourse to the Company in such regard, and the Subscriber hereby indemnifies and holds the Company harmless against any and all such claims and/or recourse. Upon such termination, the Company shall be entitled, in its discretion, to retain all documentation exchanged in Cases inter alia in order to ensure that counterparties are able to access such documents.
4. CHARGES
4.1. The Charges are payable by the Subscriber for the duration of the subscription period. The Subscriber acknowledges that it has acquainted itself with, understands and accepts the Charges.
4.2. The Charges shall remain unchanged for the Initial Term, but shall thereafter be according to the Company’s then prevailing rates from time to time in respect of any renewal or extension of the Initial Term.
4.3. The Company shall be entitled to forthwith suspend the Subscriber and all other Users falling under the Subscriber’s subscription licence in the event that the Subscriber fails to pay any Charges punctually and in full, or should any debit order for such charges not be honoured, or should the Subscriber or any User falling under the Subscriber’s subscription commit any breach of this Agreement, and the Subscriber and all other Users falling under the Subscriber’s subscription licence shall have no any claims of whatsoever nature against the Company due to such disconnection/cessation and the Subscriber hereby indemnifies and holds the Company harmless against any and all claims of whatsoever nature and howsoever arising consequent thereupon.
4.4. The Subscriber shall not, under any circumstances whatsoever, be entitled to withhold, defer, offset against or make any deduction from any payment due to the Company in terms of this Agreement.
4.5. Unless otherwise specifically stated, all Charges payable by the Subscriber are nett of value-added tax insofar as it is applicable and will be billed in South African Rands (ZAR).
5. THE LITIGATOR SERVICES
5.1. For purposes of providing the Litigator Services, Litigator permits Users to share a registry of Court Documents with various authorised participants. The provisions of clauses 5.2, 5.6 and 5.8 below set out the terms and conditions that regulate the basis upon which a User can:
5.1.1. invite another User and/or Client and/or Counsel to participate in a particular Case; and
5.1.2. link another User and/or Client and/or Counsel to a Case.
Linking of Litigators
5.2. The primary sharing function on Litigator exists between Users who represent parties in a Case.
5.3. Upon the registration of a new Case on Litigator a User is permitted to insert the User e-mail address for another User (typically an opposing attorney).
5.4. If a User nominates another User as a participant in a Case (regardless of whether it is a new Case or an amendment to an existing Case) he is solely responsible for ensuring that each User that it links to the case is duly authorised to represent the party and is correctly linked. If a User amends the Case information on any Case, including an amendment to the Case information that has the effect of removing the access of another User or a Client, it is the responsibility of that User to validate and confirm that such removal is correct.
5.5. Users that are linked to a Case are able to view all of the Court Documents exchanged in the case, whether they are:
5.5.1. “uploaded” being Court Documents that are simply uploaded into the shared registry; or
5.5.2. “previously served” being Court Documents that are uploaded with a User selected date, typically being the date that the Court Document was previously served; or
5.5.3. “served” being Court Documents that a User has delivered to another party using Litigator; or
5.5.4. “Delivered” being Court Documents that have been Served and Filed
Linking of Clients
5.6. Litigator permits Users to share Case documents with Clients, expert witnesses and other third parties that have subscribed for a Client license.
5.7. A User that is linked to a Case as a Client is only permitted to view Case documents (they are not permitted to either upload or serve documents in that Case).
Service & Filing of Documents
5.8. By subscribing for the Services, Users are able to exchange documents with other Users electronically via Litigator and have Court Documents filed at the appropriate Forum, and for such purpose they hereby irrevocably agree, acknowledge and undertake that:
5.8.1. the exchange of Court Documents with other Users via Litigator constitutes proper and valid service in terms of the Rules for all purposes;
5.8.2. a Litigator Certificate of Service shall constitute proof of proper service of any Court Document on another User in any Case;
5.8.3. the date and time of the Service of any Court Document shall be the date reflected on the Litigator Certificate of Service as the time and date of service (regardless of the date and time when the User actually receives or views such Court Document);
5.8.4. to the extent that is necessary in terms of the Rules applicable to any Case, the Users linked to that Case hereby condone any non-compliance with the manner of Service of Court Documents contemplated by such Rules (provided however that such condonation does not apply to any late Service or Filing of any Court Documents, other than to the extent envisaged in this Agreement);
5.8.5. the Company will not be able to File any Court Documents on the User’s behalf unless and until such time as the User has obtained an Advanced Electronic Signature through the Company;
5.8.6. a Court Document bearing the Advanced Electronic Signature of a User and certified in terms of clause 5.9 below, shall be deemed to constitute an original document for all purposes, including, inter alia, the Filing and/or issuing of Court Documents at any Forum
5.9. The Subscriber hereby appoints Litigator and/or Litigator’s Filing Agents, as an officer in its service, as envisaged in S15(4) of the Electronic Communications and Transactions Act No. 25 of 2002, and hereby irrevocably authorises the Filing Agent/s to:
5.9.1. print any Court Document exchanged via Litigator from electronic format and bearing the User’s Advanced Electronic Signature and to certify it to be a true reproduction of such document in electronic format in accordance with Section 15(4) and 18(2) of the Act; and
5.9.2. to file such Court Document at the appropriate Forum as a deemed original.
5.10. The User hereby acknowledges that in order to ensure that Court Documents are Filed by the day following receipt thereof by the Filing Agent, such Court Document/s must be received by the Filing Agent prior to 10h00 on such preceding day, failing which such Court Documents might only be filed the on the second day after such receipt by the Filing Agent. All Users agree that, should a User timeously transmit any Court Document to a Filing Agent as per the aforegoing, but the Filing of any such Court Document/s be late due to any event beyond the control of the Filing Agent, then such late Filing shall be condoned.
5.11. A copy of the face of any Filed Court Document/s bearing the stamp of the appropriate Forum will be transmitted to the User via Litigator within 3 days of the day of Filing.
5.12. Litigator does not facilitate the service of process or Court Documents or any other function that is reserved for the Sheriff of the Court in terms of the High Court Act, the Magistrates Court Act and/or the Rules.
5.13. The Company does not check the content, nature or form of any Court Documents, nor the time periods for the filing of any Court Documents, and merely facilitates the exchange/Service of Court Documents via Litigator. Accordingly, the content, nature and form of any Court Documents and the timeous delivery thereof in accordance with the Rules shall at all times be the sole responsibility of the relevant User, and the Company shall not, under any circumstances, be liable in any manner whatsoever to the Subscriber or any other Users falling under the Subscriber’s subscription licence, nor shall the Subscriber or any other Users falling under the Subscriber’s subscription licence have any claims of any nature against the Company, consequent upon any errors in content, form or procedure and/or any failure to comply with any time period prescribed by the Rules or in terms of any other law relating to any Court Documents that a User elects to exchange via Litigator.
5.14. It shall at all times be the sole responsibility of the Subscriber and all Users to ensure that:
5.14.1. they familiarise themselves with Litigator and the use thereof;
5.14.2. the e-mail address associated with their membership is correct and current and is able to accept delivery of e-mails via Litigator;
5.14.3. they log in to and check Litigator regularly for receipt of any Court Documents and correspondence via Litigator,
and the Company shall not, under any circumstances, be liable in any manner whatsoever to the Subscriber, Users or Clients, nor shall a Subscriber or User have any claims of any nature against the Company, consequent upon any failure or omission on the part of any Subscriber or User in such regard;
5.14.4. they have and maintain an adequate Computer System in respect of each User. In this regard, it is acknowledged and understood by Subscribers/Users that the speed of their internet connection and the capacity and capability of their Computer System to scan, compress and upload documents to Litigator will directly affect the speed of the Litigator functionality;
5.14.5. they properly and timeously upload and label their Court Documents on Litigator so as to enable timeous Delivery in accordance with the Rules. In this regard, the uploading and/or Service of documents is contingent upon the file size of the pdf document that is uploaded or Served. The Company shall not be responsible for any delays that result from unusually large file sizes being uploaded and / or Served, or for any failure of Litigator, or delay, that occurs because of unusually large file sizes;
5.14.6. they monitor their Litigator e-mail address and Litigator on an on-going basis for the delivery to them of new Court Documents and correspondence;
5.14.7. they correctly capture any and all data required for the operation of Litigator; and
5.14.8. they familiarise themselves and comply with the Rules and the practice directives of each Court in respect of which they litigate,
and neither the Subscriber nor any Users falling under the Subscriber’s subscription licence shall have any claims of whatsoever nature against the Company consequent upon any failure by the Subscriber or any Users falling under the Subscriber’s subscription licence to do so.
5.15. In the event that Litigator is unable to effect successful electronic Service of any Court Documents on any party to a Case, for whatever reason, including as a result of incorrect or inactive e-mail accounts, network failure, Litigator message rejection, power outages, force majeure, or any other reason, then it shall be the sole responsibility of the dispatching User to communicate with the intended counterparty and to make alternative arrangements for Service of the relevant Court Document.
5.16. The Company undertakes in favour of the Subscriber that:
5.16.1. the Company shall keep the contents of any and all Court Documents that are uploaded to Litigator confidential and shall not disclose the contents or any part thereof to any other party other than to linked participants to the relevant Case;
5.16.2. Litigator shall be adequately secured so as to prevent any unauthorised access to the Court Documents stored thereon.
Correspondence Modules
5.17. Users are entitled to correspond with each other on Litigator. Users are also permitted to use the correspondence module in order to correspond with Clients or other linked third parties. It is the responsibility of the User to ensure that it familiarises itself with these correspondence modules and to take precautions to ensure that any messages that it sends are directed to the intended recipient.
6. DATA CHARGES
6.1. Each Litigator license affords a User free data as determined by the User’s selected membership plan.
6.2. The System measures the utilisation of data through the amount of data consumed on uploading, downloading and viewing files, coupled with the amount of data actually stored on the database by each User.
6.3. Data utilisation in excess of the amount specified by the User’s selected membership plan per Litigator shall be debited to the Subscriber’s account at the Company’s prevailing rates applicable to data usage.
7. DOWNTIME
7.1. The Company shall not under any circumstances be liable for any loss or damage suffered by any Subscriber, or any Users falling under the Subscriber’s subscription, or Clients, consequent upon downtime of Litigator due to power outages, failure of network service providers, technical faults, events of force majeure, site maintenance, or any other event of whatsoever nature.
7.2. In the event that the Services are interrupted and/or Litigator is offline or experiences downtime due to any issue as referred to under 7.1 above, then in such event:
7.2.1. the Company undertakes to take all reasonably necessary steps so as to promptly resolve any such issues and restore the Litigator site functionality as soon as possible;
7.2.2. Litigator will issue an e-mail to all Users advising them of the interruption and the anticipated date/time of restoration of the Litigator functionality.
8. EFFECT OF TERMINATION
Upon the termination of the Subscriber’s subscription membership licence, access of the Subscriber and all Users falling under such subscription to Litigator and the Litigator Services shall be terminated and they shall thereupon not be permitted to access Litigator or the Litigator Services. The Company, upon such termination, will terminate any linking that such Subscriber and all Users falling under such subscription licence have to any registered Case, with the result that any other User that is linked to a Case shall not be permitted to Serve upon such User/s. The Subscriber, and thereby all Users falling under such subscription licence, accept the risk that another User may be terminated and that, thereafter, service of Court Documents upon such User via Litigator will no longer be possible.
9. GENERAL TERMS
9.1 This Agreement is the whole agreement between the parties. No other terms, conditions, stipulations, undertakings, representations or warranties shall be of any force or effect other than expressly included herein.
9.2 No variation of, addition to, mutual cancellation or amendment of this Agreement and no waiver by either party of any of its rights hereunder shall be of any force or effect unless recorded in writing and signed by the Company and the Subscriber or their duly authorized agents on their behalves.
9.3 No extension of time or other indulgence granted by the Company to the Subscriber in respect of enforcing the Subscriber’s obligations hereunder will in any way be seen to be a waiver by the Company of its rights or otherwise affect the Company’s rights in terms of this Agreement.

7Privacy Policy

Litigator Privacy Policy

The below policy information sets out the manner in which we collect and manage your information when you make use of the Litigator system.

What & Why

It is essential that we collect and use the following information in order to provide our users with the functionality available on the Litigator service offering:

Account. We collect, and associate the following information with your account:

  • Name / firm name;
  • Client names;
  • Postal and physical addresses;
  • Email address;
  • Phone number;
  • Payment information;
  • Advanced Electronic Signature details.

Services. When making use of Litigator we  store, process and transmit your files (pleadings, notices, bundles, messages) and associated information. We may also store details of your opponents, advocates, expert witnesses, and correspondent attorneys if you provide us with such details. This enables you to invite “team members” to a particular case.

Usage. We obtain information from the devices utilised in accessing the Litigator platform, including:

  • IP addresses
  • Browser version
  • Device
  • Identifiers associated with your devices
  • The devices you use may transmit location information to the Services.

Cookies and other technologies. Litigator makes use of technologies such as cookies and pixel tags to provide, improve, protect and promote the service. Cookies assist with:

  • remembering usernames and passwords;
  • Subscriber interaction trends;
  • Service improvement;
  • All subscribers to log into Litigator;
  • Remember preferences and settings
  • Keep your account secure

Subscribers may change browser settings to not accept cookies. This may effect user experience on the site.

 

We may share information as discussed below, but we won’t sell it to advertisers or other third-parties.

Associated parties.Litigator makes use of  trusted third parties to help us provide, improve, protect, and promote the Litigator service. These third parties will access your information only to perform tasks on our behalf and in compliance with this Privacy Policy.

Other users. Our Services display information like your name and email address to other users in places like your user profile and sharing notifications. Certain features let you make additional information available to other users.

Other applications. Subscribers information may be provided to third parties who integrate with Litigator. For example through APIs with Pitney Bowes and Futuresoft.  Their use of your information will be governed by their privacy policies and terms.

Legal and statutory. Subscriber information may be disclosed to third parties if we determine that such disclosure is reasonably necessary to:

(a) comply with the law;

(b) protect any person from death or serious bodily injury;

(c) prevent fraud or abuse of Litigator and it’s subscribers;

(d) protect Litigator’s property rights.

Changes

Any changes to company structure will be communicated via the Litigator website and may result in subscriber information being available to the additional parties involved in the new company structure.

This Privacy Policy may be amended from time to time. An updated version will be available on www.litigator.co.za.

Contact

www.litigator.co.za or +2711 783 8017

8Refund Policy
In the event of any user or subscriber wishing to obtain a refund for any service or action carried out on the Litigator platform, or by Litigator employees and partners, Litigator will consider such refund once the reasons have been sent in an email to [email protected].
9ECT Act - Relevant Summary
Summary of relevant sections of the
Electronic Communications and Transactions Act, 2002 (ECTA)

Section 14 of the ECTA deals with what constitutes an “Original” document in the electronic data environment. In order to be deemed an original document, the integrity of a data message must be maintained, in accordance with subsection 14(2), and the relevant document must be capable of being displayed or produced to the person to whom it is to be presented.
In addition, in terms of Section 13, where the law requires the signature of a person and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used. An advanced electronic signature not only acts as a practical means to electronically sign a document, but also acts as a security check that will alert the reader should the document be altered from its original form.
An electronic document signed by way of an advanced electronic signature only exists in its original form whilst it is a “data message”. For the purposes of providing a certified hard copy (printout) of the original document, for physically filing at court, one must apply:

Subsection 18(2) of the ECTA:
“Where a law requires or permits a person to provide a certified copy of a document and the document exists in electronic form, that requirement is met if the person provides a print-out certified to be a true reproduction of the document or information.”
and / or
Subsection 15 (4) of the ECTA is also relevant in this regard:
“A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.”

See also Firstrand Bank Limited v Venter [2012] JOL 29436 (SCA)

The ECTA provides that where an original is required, that requirement is met if the document has an advanced electronic signature, which is defined in the ECTA as:
An electronic signature, which results from a process, which has been accredited by the Authority as, provided for in section 37.

When being allocated an advanced electronic signature, in terms of the ECTA, the applicant is put through a registration and validation process that includes, amongst other things, background checks with Home Affairs, finger print verification and a “face to face” assessment meeting.
The higher status and functionality of an advanced electronic signature is laid out in Section 13 of ECTA:
“Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used.”

These signatures take proof of identity of the signatory to another level. The status of the signatory is associated to the advanced electronic signature / Class 4 Signature and enables one to immediately assess whether that signatory’s credentials are in order. Should an attorney be struck off the roll or suspended, his/her signature credentials would be immediately amended to alert the person viewing it.

An advanced electronic signature does not only become a digital substitute for a hand written signature, but through the technology applied, is able to protect the integrity of the document to which it is attached, in order to prevent changes in error or fraudulent intentions. An advanced electronic signature thus serves to authenticate the source of the document as well as a means of verifying document integrity. Where the law requires a document to be an original, Section 14 of ECTA provides that the requirement is met if the integrity of the electronic document has been maintained. Signing using an advanced electronic signature facilitates for the integrity of the data message remaining intact.

10Court Rules - Electronic Service
Electronic Service & Filing of Litigation Documents

Legislation and Court Rules make provision for service of litigation documents electronically.

In this regard:

Magistrates Court

Rule 5(3)(b) requires the summons to indicate whether the plaintiff is prepared to consent to the delivery of documents and notices subsequent to the initial process other than by physical or postal address.

Rule 5(3)(c) provides that if an action is defended the defendant may, at the written request of the plaintiff, deliver a consent in writing to the exchange or service by both parties of subsequent documents and notices in the suit by way of facsimile or electronic mail.

Rule 5(3)(d) gives plaintiff a remedy and the court a discretion if the defendant fails or refuses to give consent.

Rule 13(3)(b) Defendant must state in the Notice of Appearance to Defend whether it will accept service electronically,

Rule 13(3)(c) Notice by Plaintiff agreeing to accept service electronically as per request by the Defendant.

Rule 13(3)(d) Defendant can make application to court to grant such consent.

High Court

Rule 4A provides that all pleadings, notices and other documents (other than an initiating document like a summons) can be served by facsimile or email.

Rule 4(A)(3) ensures that Chapter III, Part 2 of the Electronic Communications and Transactions Act No. 25 of 2002 (ECTA) applies to service by facsimile or electronic mail. Therefore, an agreement concluded by means of a data message is legally enforceable and is regarded as having been sent when it enters the information system outside the control of the originator. Further, a data message is deemed as having been received by the addressee when the complete data message enters an information system designated or used by the addressee and is capable of being retrieved and processed by the addressee. An acknowledgement of a data message is not necessary to give legal effect to the message, although this may assist evidentially.

Rule 17 provides for, amongst other matters, that a summons shall set out the attorney’s physical and postal addresses and where available, the facsimile number and the electronic mail address. In addition, the plaintiff may indicate the preferred manner of service (including via facsimile or electronic mail) in the summons and the defendant may also, at the written request of the plaintiff, consent in writing to the exchange or service by the parties of subsequent documents by way of facsimile or electronic mail. If the defendant refuses or fails to consent to such request, the plaintiff may apply to court for such consent to be ordered.

The amendment of Rule19 provides that the defendant may indicate the preferred manner of service in the notice of intention to defend. The defendant may also, in writing, request the plaintiff to consent to the service of subsequent documents and notices by way of facsimile or electronic mail. If the plaintiff refuses or fails to deliver consent then the defendant may make an application to court to grant such order.

General

The serving of litigation documents electronically, although specifically allowed for, has not been adopted as widely as one would expect. Some possible reasons could be:

• Lack of a validation of delivery to the opponent through a certificate of service
• Practice habits and a reluctance to adopt technology. A mindset change that one could compare to the initial adoption rates of Internet Banking when introduced.

Litigator is able to file documents at court on behalf of its subscribers. The adoption of electronic service in combination with manually filing a physical print out, on behalf of the attorney, addresses the pain associated, and money wasted, with queuing at court to attend to filings. By adopting the use of advanced electronic signatures and applying S 15 (4) and S18(2) of the Electronic Communications and Transactions Act, 2002 (ECTA), an attorney is now able to carry out the task of serving and filing litigation documents in a seamless electronic environment.

In the same way a document can also be Issued by utilizing the Litigator platform. Over and above the common benefits associate with using Litigator to File documents at court, subscribers will now save substantial costs that would normally be associated with instructing a correspondent to open a file and attend to the Issuing of the commencement document.

An electronic document signed by way of an advanced electronic signature only exists in its original form whilst it is a “digital message”. It is not practical or currently possible to file a digital document with the court, however one is able to file a certified physical copy of the digital document in a court file.
This would be done by applying S18(2) of the ECTA:

“Where a law requires or permits a person to provide a certified copy of a document and the document exists in electronic form, that requirement is met if the person provides a print-out certified to be a true reproduction of the document or information.”

S15 (4) of the ECTA is also relevant in this regard:

“A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.”

See also Firstrand Bank Limited v Venter [2012] JOL 29436 (SCA)

The amendments to the Rules made way for service of litigation documents via Litigator. Over and above this, Litigator also duplicates the service by sending the served document by traditional email to the recipient’s email address. This means that should your opponent not be a member of Litigator but has nevertheless consented to electronic service, the platform will serve him / her via their provided email address, as per the Rules 17 & 19 above.

Where both parties have agreed to utilise the Litigator platform in a matter, their agreement to use Litigator (as per the terms and conditions) as well as their tacit agreement to exchange service via Litigator, satisfies the requirements of this service model. Where only one of the parties utilises Litigator, then they can only use Litigator to service court process, if the other party has specified an email address to accept service