By Roelf Nel (Director) and Carin van Wyk (Candidate Attorney), Roelf Nel Incorporated, Infrastructure Project Attorneys.
Social media has become the most commonly used means of communication as it is the most convenient. With the use of mobile phones communication by social media and messaging services is instant, which makes it convenient. This raises the question: “what is the role of social media within the work place?” As much as social media is beneficial for Contractors and Sub-Contractors to communicate instantly within defined groups, its use in business in mostly unregulated and can result in disputes between the parties.
Definition of Notices
The JBCC Principal building agreement as well as the Nominated Selected Subcontract agreement edition 6.2 has amended the definition of Notices as follows; “A written communication, excluding social media, issued by either party, the principal agent and/ or agents to the other party and the Principal Agents to, inter alia, record an event, request outstanding construction information or where suspension or resumption of works and or termination of this agreement is contemplated”. The question is what effect this exclusion will have within the construction Industry.
The first issue to address is what is defined as Social Media? The JBCC does not include a definition of social media. The Merriam Webster dictionary defines social media as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos)”. The law society, in an electronic publication on social media, defines social media as “web-based and mobile technologies that turn text communications into active dialog”.
This understanding of social media is very broad and could include instant messaging services such as Whatsapp, Facebook Messenger and Wechat, to name a few. These instant messaging services contain important elements of social media, which is a digital means of communication which allows people to communicate socially and to do so instantaneously.
This can mean that in terms of the amended definition of Notice in the JBCC PBA and NSSA Agreements edition 6.2, a notice sent by text message via an instant messaging services will not be a valid form of notification which can have a serious consequence for the parties to the agreement.
Notices play a very important role in managing the JBCC contract. Notices are intended to be a formal method of recording communication between the contracting parties. It creates an audit trail as to when and how contract instruction is given, it is the prescribed method to administer an extension of time claim, to declare a dispute and plays in important role in suspension and termination of the agreement. Without proper notification, a subcontractor can forfeit a contractual entitlement such as an extension of time. Without proof of notices having been sent it makes administering the contract virtually impossible.
Currently, communications by means of social media are largely unregulated by the law, however, the Courts are taking social media-related disputes seriously. The definition of notices in the JBCC PBA and NSSA Agreements edition 6.2, which excludes notices sent by means of social media, has been amended to bring certainty to the notification process and to ensure that the interest of all parties is protected.
Notices should be sent by the parties timeously. They need not be in a specific format but should be concisely set out, legible and contain all the required information.
In terms of the amendment, the notices should not be sent by social media platforms which could include Facebook Messenger, Whatsapp or Wechat but should be sent by email or delivered by hand and proof of delivery or acceptance should accompany the notice.
Document control system
Having a document control system in place (electronic and hardcopy, if possible) on your project is essential to a successful project and will not only assist in resolving dispute but will in all probability avoid most disputes in their entirety. Sub-Contractors should take this amendment into consideration and avoid sending Notices on instant messaging platforms; and should not accept a notice sent to them by means of social media platforms.
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