In the digital age we are currently living and more and more people shifting from the traditional forms of consulting and concluding agreements, the question comes to mind whether a binding contract can be concluded through the well favoured, WhatsApp message.

Generally speaking, for a binding contract to be concluded, all that is required is:

1. Consensus between the parties;
2. An offer and acceptance;
3. The obligations must be capable of performance;
4. The parties should have the necessary animus contrahendi or intention to contract; and
5. The agreement must be legal and lawful to be enforceable.

The above question was addressed in the recent High Court judgement of M obo M v Kgopana (3941/2016) [2018] ZALMPPHC. The Plaintiff here instituted an action against the Defendant to enforce an undertaking allegedly made by the Defendant to pay a certain amount of money to the Plaintiff for the benefit of their minor children in the event of the Defendant winning in the National Lottery (Lotto). During 2016 the Defendant sent a WhatsApp message to the Plaintiff that reads as follows:

“If I get R 20 million I can give my children R1 million and remain with R 13 million.” 

When it became clear that the Defendant actually won R 20 814 582.00 in the Lotto, the Plaintiff contended that the unilateral undertaking made in the WhatsApp message should be enforced. The High Court accordingly found that the WhatsApp message constituted a binding agreement and ordered the amount to be paid to the Plaintiff.

The decision was however taken on appeal to the Supreme Court of Appeal (SCA) in Kgopana v Matlala (1081/2018) [2019] ZASCA. The issue before the Court was whether the WhatsApp message constituted an offer animo contrahendi - an offer which upon acceptance could give rise to an enforceable contract. The Court accordingly found that the message did not contain an offer that could on acceptance thereof, be converted in an enforceable agreement. Therefore, it was found that the Appellant subjectively had no intention to contract. The High Court’s decision was thus overturned.

Although the SCA in the above case found that the Appellant had no intention to contract, this does not automatically apply to all WhatsApp messages and the decision needs to be read in context.

The Electronic Communications & Transactions Act (ECTA) 25 of 2002, provides in section 22(1) that: “An agreement is not without legal force and effect merely because it was concluded partly or in whole by means of data messages”. A “data message” in terms of the said Act, means data generated, sent, received or stored by electronic means, which would include WhatsApp messages.

Caution should therefore be taken before you negotiate or make offers online or via instant messaging, as those expressions could possibly create legally binding obligations.