Judge urges legal system to embrace digital tools like WhatsApp
Mpho Mokwape | Wednesday July 30, 2025 06:00
The use of the platform recently came under the spotlight in a High Court case involving a dispute over how legal documents were served, in which the defendant had served a ‘notice to defend’ document to the applicant by WhatsApp service.
The case was before Justice Zein Kebonang of the Gaborone High Court, where he deliberated whether a WhatsApp message could be considered a valid method of serving court documents.
Kebonang started by highlighting a broader issue in the judiciary, mentioning the judiciary's failure to embrace modern digital tools like WhatsApp, email, or other electronic messaging platforms.
“Despite the rise of digital communication and the proven reliability of such platforms, the rules of court remain stubbornly analogue. This case is a telling example of how our legal system continues to operate in the stone age,” he said.
The judge explained that what should matter is not the medium of transmission but whether the document was received and acted upon, saying even the applicant in the case had acknowledged receipt of the documents without any issues.
He said in 2011, the judiciary celebrated a landmark moment with the introduction of the Case Management System (CMS), aimed at modernising the courts and improving efficiency.
Kebonang said at the time, many believed it was the beginning of a digital transformation in the administration of justice, but to litigants’ disappointment, over a decade later, progress remains stunted.
“Courts still lean heavily on paper-based, traditional practices, leaving the potential of digital tools largely untapped,” he said.
Looking into the case that put WhatsApp-based service under the spotlight, the judge said according to Order 9 Rule 1(4) of the Rules of the High Court, a memorandum of appearance to defend may only be delivered either by post to a self-represented litigant (self-actor) or served to the attorneys if legal representation is involved.
He noted that at the time the applicant issued summons, he was a self-actor; therefore, under the rules, service should have been directed to his postal address.
“But the respondent chose a different route by sending the memorandum of appearance through WhatsApp. Interestingly, the applicant received the message and even acknowledged it. Yet, he later challenged the service’s validity, though not immediately. His first reaction was not to object but to proceed by filing a declaration and applying for summary judgment,” he said.
The judge said the delay in objecting to the WhatsApp service in the court’s view, the objection was not only belated but also insincere and opportunistic, as he had not suffered any prejudice and that he received the document in good time, and the matter could proceed.
Kebonang said that despite the WhatsApp-based service not being recognised by the courts, the focus should not be on how the document was sent, but whether it was received and acknowledged.
In the end, he dismissed the applicant's objection and upheld the service via WhatsApp, though not as a formal recognition of it under the rules, but on the basis that there was no real harm done.
In conclusion, Kebonang said the case serves as a wake-up call for legal reform as it demonstrates the growing tension between outdated procedural rules and the realities of modern communication.
“If courts are to remain relevant and efficient in the digital age, reform must follow function. After all, in a world where critical information can be sent across continents in seconds, should justice depend on snail mail?” he rhetorically asked.