As digital technologies continue to evolve and integrate into everyday life, the application of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) has become increasingly significant in both the public and private sectors. The Act plays a pivotal role in shaping the legal framework for electronic communications and e-commerce in South Africa.

The legislature enacted ECTA to provide for the facilitation and regulation of electronic communications and transactions. The legislation provides legal certainty for those interacting and transacting online and, further, provides important legal frameworks for the use of electronic signatures, data messages, and e-commerce practices.

Since the introduction and implementation of ECTA, there are only a few documents which our law requires to be signed in the ‘traditional’ pen-on-paper manner. These include inter alia a last will and testament or documents relating to the alienation of immovable property. Almost all other documents, which could include contracts or agreements between parties, are able to be signed and even stored electronically.

Section 11(1) of ECTA importantly provides legal recognition to electronic documents by providing that information is not without legal force and effect merely because it is in the form of a data message. The Act broadly defines ‘data messages’ as being electronic representations of information that are generated, sent, received, or stored by electronic means. In practice, Section 11(1) read with section 14 provides that, for example, a contract which is signed and stored as a PDF on one’s computer has as much legal force and effect as a contract which is signed and stored as a hard copy in a filing cabinet.

The application of the above-mentioned provisions is of importance for anyone who enters into written agreements of any type. Individuals are able to store these important documents safely in an electronic format and still be able to rely on that document in its electronic form should any type of disputes arise or if they find themselves in a litigious situation.

The second important legal framework created by ECTA is contained in Section 13, which provides legal recognition for electronic signatures. Section 13(2) provides that an electronic signature is not without legal force and effect merely because it is in electronic format. In practice, this means that ECTA has provided that where a person signs electronically or physically and scans through a document with their signature attached thereto, the signature has the same legal force and effect as a ‘traditional’ pen-on-paper signature.

Section 13(3) is relevant where there are no requirements set as to the type of signature required. In these instances, any type of electronic signature is acceptable as long as it:
(a) identifies the person;
(b) indicates that the person has accepted the contents of the document.

Once again, the application of these provisions is relevant for those individuals who want to electronically store a signed contract or even where they are requested to sign an electronic document. As a signatory to a written agreement, simply typing your name or making a scribble with the ‘draw’ function counts as attaching your signature, and as a result, your acceptance, to a document. For this reason, it is important to be aware of the legality of electronic signatures and not to take ‘signing’ documents lightly.

Reference list:
1. Electronic Communications and Transactions Act 25 of 2002 (“ECTA”)

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