Important Information

Important Information

LITIGATOR TERMS AND CONDITIONS

The below Terms and Conditions apply to the use of Litigator by Users (as defined below) accessing the products, Services (as defined below), software, platform and websites provided by LLS (as defined below). These Terms and Conditions are binding and enforceable against every person that accesses or uses any of the Litigator websites/portals (“User/s”), including without limitation to each User who registers (as contemplated below).

By using Litigator and by clicking on the “Register” button, as may be applicable, the User acknowledges that it has read and agrees to be bound by these Terms and Conditions. Users making use of the Services on behalf of any other person / entity, or as an employee or agent of a person / organization, agrees to these Terms on behalf of that organization / person.

LLS reserves the right to amend the terms and conditions from time to time, without prior notice to Users. All changes to the terms and conditions will be published on www.litigator.co.za.

1. DEFINITIONS & INTERPRETATION

1.1. In these Terms and Conditions, except in a context indicating that some other meaning is intended:

1.1.1. “the Act” means the Electronic Communications and Transactions Act No. 25 of 2002, as amended;

1.1.2. “Activation Date” means the date upon which the User’s access to Litigator is activated by LLS through the User’s registration;

1.1.3. “Advanced Electronic Signature” means an advanced electronic signature as defined in Section 1 of the Act;

1.1.4. “Case” means a litigious matter that is registered on Litigator;

1.1.5. “Charges” means the prevailing rates as charged by LLS and any other charges payable by the User for the Services;

1.1.6. “Client” means a client of any User in respect of any particular Case;

1.1.7. “Computer System” means computer hardware (including a document scanner), software and internet system having the minimum capabilities to access Litigator and thereby access and utilise the Services;

1.1.8. “Court Document” means any litigious document to be issued/Filed/delivered/Served in a Case, including notices, pleadings, discovery affidavits, request for default judgments, writs of execution, pre-trial minutes and/or applications;

1.1.9. “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;

1.1.10. “Filing Agent” means any of LLS’s agents, including but not limited to LLS’s correspondent attorneys, duly authorised to receive Court Documents from Users electronically via Litigator and File them at the appropriate Forum;

1.1.11. “Forum” means any Court or other forum in which a Case is pending;

1.1.12. “Litigator” means the Litigator proprietary electronic internet platform via which the Services are accessed and utilised, which utilises the following IP addresses www.litigator.co.za, portal.litigator.co.za and/or admin.litigator.co.za;

1.1.13. “LLS” means Lexie Legal Services Proprietary Limited, registration number 2012/098375/07, trading as Litigator;

1.1.14. “Terms and Conditions” 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;

1.1.15. “Registered User” means any User that registers on a Litigator portal in order to utilise the Services;

1.1.16. “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;

1.1.17. “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; and

1.1.18. “Services” means the services provided via Litigator, namely the secure electronic exchange of Court Documents, the use of the functionality available on the Litigator portal, the processing of Court Documents, the delivery of Court Documents to Filing Agents and/or sheriffs, the Filing of such Court Documents at the appropriate Forum and ancillary and related services, subject to clause 2, below.

1.2. In these Terms and Conditions, unless the context otherwise indicates:

1.2.1. the singular shall import and include the plural and vice versa;

1.2.2. words indicating one gender shall import and include other genders;

1.2.3. words indicating natural persons shall import and include juristic persons and artificial persons; and

1.2.4. the head notes to these Terms and Conditions are used for the sake of convenience only and shall not govern the interpretation of the clause to which they relate.

2. THE LITIGATOR SERVICES

2.1. The Registered User hereby appoints Litigator and/or Litigator’s Filing Agents, as an officer in its service, as envisaged in S15(4) of the Act, and hereby irrevocably authorises the Filing Agent/s to:

2.1.1. print any Court Document exchanged via Litigator from electronic format (whether bearing the User’s Advanced Electronic Signature or not) 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

2.1.2. to File/Serve/deliver such Court Document at the appropriate Forum as a deemed original.

2.2. Litigator does not facilitate the service of processes 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.

2.3. LLS 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 LLS shall not, under any circumstances, be liable in any manner whatsoever to the User (or Client) or any other person falling under the User’s licence, nor shall the persons falling under the User’s licence have any claims of any nature against LLS, 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 or process via Litigator.

2.4. It shall at all times be the sole responsibility of the User to ensure that:

2.4.1. they familiarise themselves with Litigator and the use thereof;

2.4.2. they have and maintain an adequate Computer System. In this regard, it is acknowledged and understood by the User 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;

2.4.3. the e-mail address associated with their registration is correct and current and is able to accept delivery of e-mails from Litigator;

2.4.4. they correctly capture any and all data required for the operation of Litigator;

2.4.5. they familiarise themselves and comply with the Rules and the practice directives of each Court in respect of which they litigate;

2.4.6. 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 Court Documents is contingent upon the file size of the PDF document that is uploaded. LLS shall not be responsible for any delays that result from unusually large file sizes being uploaded; and

2.4.7. they log in to and check Litigator regularly for receipt of any updates, Court Documents and/or correspondence via Litigator; and LLS shall not, under any circumstances, be liable in any manner whatsoever to the User or their Clients, nor shall a User or its Client have any claims of any nature against LLS, consequent upon any failure or omission on the part of a User in such regard.

2.5. The information provided by LLS and the facilities provided via Litigator, does not in any way amount to legal advice. Although qualified attorneys are responsible for the content and functionality on the platform, they are not available to review information provided by the User and as such are not in a position to evaluate the accuracy or provide opinions to the facts and the User’s legal standing.
If specific legal advice is required a User should consult with a qualified practicing attorney. The information provided on the Litigator system is in no way provided as a replacement for legal advice.
By making use of the system the User does not enter into an attorney-client relationship with LLS, it’s employees or shareholders.

2.6. The User and/or its Clients agree that all third parties, including any and all Filing Agents and/or correspondent attorneys, introduced to him/her/it/them by LLS represent significant efforts and working relationships that are unique to, and part of, the work product and intellectual capital of LLS. Therefore, without the prior specific written consent of LLS, the User and/or its Clients agree to refrain from conducting direct or indirect business dealings of any kind with any third party, including any and all Filing Agents and/or correspondent attorneys, so introduced by LLS, with the exception of third parties with which the User has previously had a formal business relationship, during the utilisation of the Services and for a period of 2 (two) years thereafter.

3. CHARGES & PAYMENT

3.1. The Charges, as published by LLS from time to time, are payable by the Registered User for any and all items lodged for processing on Litigator and attended to by LLS and include, but are not limited to, issue and delivery to sheriff fees, outlying sheriff surcharge fees, filing fees, service fees, lodgement of default judgment fees and/or printing charges. The User acknowledges that it has acquainted itself with, understands and accepts the Charges.

3.2. Unless otherwise specifically stated, all Charges payable by the Registered User are nett of value-added tax insofar as it is applicable and will be billed in South African Rands (ZAR).

3.3. All Charges are strictly payable on 30 days of receipt of invoice. In the event that payment is not received within the aforementioned period, LLS will charge interest on all outstanding amounts at a rate of 10% per annum, compounded monthly.

3.4. The Registered User shall not, under any circumstances whatsoever, be entitled to withhold, defer, offset against or make any deduction from any payment due to LLS in terms of these Terms and Conditions.

3.5. LLS shall be entitled to forthwith suspend the Registered User (and all other Users falling under the said Registered User’s licence) in the event that the Registered User fails to pay any Charges punctually and in full, or should any debit order for such Charges not be honoured, or should the Registered User (or any other Users falling under said Registered User’s licence) commit any breach of these Terms and Conditions, and, in such event, the Registered User (or any other Users falling under said Registered User’s licence and/or its Client/s) shall have no claims of whatsoever nature against LLS due to such disconnection/cessation and the Registered User (and all other Users falling under the said Registered User’s licence) hereby indemnifies and holds LLS harmless against any and all claims of whatsoever nature and howsoever arising consequent thereupon.

4. LICENCE AND DURATION

4.1. The Registered User’s licence commences on the Activation Date and shall continue thereafter indefinitely. The licence may be cancelled by providing written notice to LLS, which notice must be received at least 1 (one) month prior the intended cancellation date.

4.2.  Upon cancellation of the Registered User’s licence, for whatever reason, the Registered User (and associated Users) shall no longer be able to access Litigator and/or utilise the Services. In such event it shall be the responsibility of the Registered User to ensure that all files and documents stored on Litigator are copied onto a Computer System, or another electronic storage platform or facility.

4.3. LLS reserves the right at all times to refuse to accept any person or party as a Registered User, in its sole discretion.

5. DATA CHARGES

5.1. Each Litigator license affords a Registered User a reserved amount of data (“Reserved Data Amount”). The Litigator 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 Registered User.

5.2. Data utilisation in excess of the Reserved Data Amount by the Register User shall be debited to the Registered User’s account at LLS’s prevailing rates applicable to data usage.

6. DOWNTIME

6.1. LLS shall not under any circumstances be liable for any loss or damage suffered by any User, Registered User (or any Users falling under the Registered User’s licence) 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.

6.2. In the event that the Services are interrupted and/or Litigator is offline or experiences downtime due to any issue as referred to in clause 6.1 above, then in such event:

6.2.1. LLS 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; and

6.2.2. 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.

7. GENERAL

7.1. These Terms and Conditions constitute 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.

7.2. No variation of, addition to, mutual cancellation or amendment of these Terms and Conditions 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 LLS and the User or their duly authorised agents on their behalves.

7.3. No extension of time or other indulgence granted by LLS to the User in respect of enforcing the LLS’s rights hereunder will in any way be seen to be a waiver by LLS of its rights or otherwise affect LLS’s rights in terms of these Terms and Conditions.

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

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.

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

We understand that your data is important and that you are concerned about the potential dissemination of personal information. If you need further information regarding our security protocols – please let us know.

The Johannesburg Magistrates Court has amended the Practice Guidelines to specifically cater for Advanced Electronic Signatures

The ECT Act was passed in 2002. Litigator has offered advanced electronic signatures as a method for signing pleadings for 3 years. Today, the Johannesburg Magistrates Court took a big step forward in accepting these signatures as being valid and changing the Practice Guidelines to that effect, particularly in relation to the issuing of summonses.

This matters because electronic tools in litigation make it so much quicker, cheaper and more effective. Plus, an advanced electronic signature is far more reliable than a typical manuscript signature.

We anticipate that all other Courts in South Africa will follow this lead.

Litigator has been pushing this envelope for a long time, leading the way.

Section 13 of ECT Act – 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.

Section 14 of ECT Act – Provides that where an original is required, that 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.

Section 15 of ECT Act – In any legal proceedings,the rules of evidence must not be applied so as to deny the admissibility of a data message

In terms of S15 (4) of the ECT Act – 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)

Magistrates Court Rules, Definitions – “Signature” includes and Advanced Electronic Signature as described and defined in Chapters I, II and III of the ECT Act and also applies to “sign”, “signing” and “signed”.

We are proudly a level four contributor.