Over the years, WhatsApp messages have been incorporated into many civil litigation matters, such as divorces or applications for protection orders, where screenshots of WhatsApp messages have aided in Magistrates or Judges arriving at decisions. Only recently, however, have we started seeing the impact of WhatsApp messages in commercial litigation, with WhatsApp evidence being pertinently referred to in court judgments.
In the recent Gerritsen Trading matter, the court used WhatsApp messages as the best evidence in the adjudication of disputes between the parties, leading to a provisional liquidation order being granted.
Gerritsen Drilling (“Gerritsen”) had drilled boreholes for Blydskap Holdings (“Blydskap”), but Blydskap had not paid Gerritsen in full for their services. Numerous WhatsApp messages were exchanged between the directors of Gerritsen and Blydskap, wherein Blydskap made certain promises to make payment of the outstanding balance. This, however, didn’t happen.
Gerritsen issued a liquidation application, which was opposed by Blydskap and in their answering affidavit, Blydskap alluded to certain defences, namely:
- Funds were being withheld until Gerritsen had provided South African National Standards Reports (SANS) for the drilled boreholes; and
- The funds would only be due once the entire project had been completed.
The Court, however, found that in the WhatsApp messages, no reference was made by Blydskap to either the SANS reports or the payment upon repair and completion of the final borehole and thus, on face value, the admitted WhatsApp messages were decisive that Blydskap was indebted to Gerritsen, had no reasonable defence and was unable to pay its debts.
The Court therefore granted the provisional liquidation order against Blydskap and sent a word of caution to all parties to heed the impact of their WhatsApp messages and treat it carefully as potentially admissible evidence.
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