The Electronic Communications and Transactions Act 25 of 2002 ('ECTA') was enacted to inter alia clarify and promote legal certainty relating to electronic communications and transactions which have, due to their practical and expeditious nature, become extremely prevalent in today's commercial environment.
The ECTA gives legal recognition to transactions which are concluded electronically, by way of email. In this regard, s12(a) of the ECTA states that a legal requirement for an agreement to be in writing will be satisfied if it is concluded electronically or by way of a 'data message' (as defined in the ECTA). Section 13(3) of the ECTA states that, where an electronic signature is required by the parties to an electronic transaction (and the parties have not agreed on the type of electronic signature), that requirement is met if:
- a method is used to identify the person and to indicate the person's approval of the information communicated; and
- having regard to all the relevant circumstances at the time the method was used, the method was as reliable and appropriate for the purposes for which the information was communicated.
The Supreme Court of Appeal ('SCA') recently handed down a judgment in the case of Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and another2015 (2) SA 118 (SCA) which deals with the question of whether or not a person's email signature, which appears at the foot of an email, is sufficient to satisfy the requirements of an electronic signature in terms of s13(3) of the ECTA.
The salient facts were that an agreement had been entered into between the appellant and respondent, which required cancellation thereof to be 'in writing' and to be 'signed by both parties'. The parties subsequently cancelled the agreement by way of email exchanges. The respondent later contended that the agreement had not been validly cancelled due to the fact that the (electronic) agreement of cancellation had not been signed by both parties. The main contention related to whether or not the email signatures constituted valid electronic signatures, as contemplated in s13(3).
On appeal, the SCA analyzed how the courts had generally approached signature requirements in the past, and held that a signature is:
"…a person's name written in a distinctive way as a form of identification… In the days before electronic communication, the courts were willing to accept any mark made by a person for the purpose of attesting a document or identifying it as his act, to be a valid signature."
Most importantly, the courts have always adopted a pragmatic, as opposed to a formalistic, approach towards signatures, and the primary consideration has always been whether or not the method of signature fulfils the function of authenticating the identity of the signatory. In terms of the ECTA, an electronic signature is defined as:
"data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature".
The SCA concluded that the names of the parties at the foot of their respective emails were:
- intended to serve as signatures;
- constituted 'data' which was logically associated with the data in the body of the emails; and
- identified the parties.
Accordingly, this detail satisfied the requirement of an electronic signature in terms of s13(3) of the ECTA and had the effect of authenticating the information contained in the emails.
The approach adopted by the SCA conforms with the aim and purpose of the ECTA, as well as the practical and non-formalistic way in which the courts have treated signature requirements in the past, and is accordingly to be welcomed.