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LML4810 Assignment 2 Elaboration and Memo
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- University Of South Africa (Unisa)
This document is affordable memo and elaboration of the assignment. Always use own words to avoid plagiarism.
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LML4810 Assignment 2Student number:
Student name:
Module code: LML4810
This Memo is merely for comparison
and should not be directly copied.
,QUESTION 1
INTRODUCTION
My discussion relates to the regulation of electronic signatures in South Africa and
specifically aims to address the requirements, validity and legal force of an electronic
signature according to the Electronic Communications and Transactions Act (Ect Act)1 . Case
Law that will be consulted to address the matter of electronic signatures is the and Spring
Forest Trading vs. Wilberry case2
LEGISLATION & CASE LAW Section 1 of the Electronic Communications and Transactions
Act3 defines “Electronic Signature” & “Advanced Electronic Signature” as follows: 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”. 4 An advance
electronic signature is defined as “an electronic signature which results from a process
which has been accredited by the Authority as provided for in section 375 ”.6
Section 11 of the ECT Act deals with legal recognition of data messages and provides that
“information is not without legal force and effect merely on the grounds that it is wholly or
partly in the form of a data message”,7 therefore providing authorisation to draft, store and
access information in electronic format.
Section 12 of the ECT Act8 deals with writing and addresses the requirement present in
various corporate agreements, which relates to a document and any subsequent
amendments to be in writing. This section provides that the “requirement in law that a
document or information must be in writing is met if the document or information is - (a) in
the form of a data message; and (b) accessible in a manner usable for subsequent
reference.” Hence, if information is in electronic format and able to be viewed as such, the
writing requirement in law has been satisfied. Section 139 is the most significant section as
it deals with electronic signatures.
The section provides that:
“(1) Where the signature of a person is required by law and such law does not specify the
type of signature, that requirement in relation to a data message is met only if an advanced
electronic signature is used”. 10 This provision provides that Law, as referred to in this
context, includes not only statutory legislation, but also common law as well as secondary
legislation11 explicitly stating that a document has to be signed in order to be valid.
Examples of such documents are suretyship agreements and a franchise agreement.
“(2) …an electronic signature is not without legal force and effect merely on the grounds
that it is in electronic form”. 12This sub-section explains that in essence, an electronic
signature will have the same force and effect as a manuscript/paper-based signature.
, “(3) 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 to be used, that requirement
is met in relation to a data message if-
(a) a method is used to identify the person and to indicate the person’s approval of the
information communicated; and
(b) having regard to all the relevant circumstances at the time the method was used, the
method
was as reliable as was appropriate for the purposes for which the information was
communicated”.
Section 13(3) seems stern at first, but in the Supreme court of appeal judgment in the case
of Spring Forest Trading v Wilberry13, the interpretation of this section came under siege
and was expressed that the name of a person at the bottom of an email, can constitute an
electronic signature. The judge held that “so long as the ‘data’ in an email is intended by the
user to serve as a signature and is logically connected with other data in the email the
requirement for an electronic signature is satisfied”. The judge went further as to confirm
that the reliability of an email and the accuracy of the information communicated between
the parties, conform to the requirements set out in section 13(3)(b).
“(4) Where an advanced electronic signature has been used, such signature is regarded as
being a valid electronic signature and to have been applied properly, unless the contrary is
proved”. This section provides that the use of an Advanced Electronic Signature14 (AES) is
therefore prima facie proof that the signature is valid and binding. The burden of proof thus
shifts to the person alleging and not the person who signed with an AES.
“(5) Where an electronic signature is not required by the parties to an electronic
transaction, an expression of intent or other statement is not without legal force and effect
merely on the grounds that
(a) it is in the form of a data message; or
(b) it is not evidenced by an electronic signature but is evidenced by other means from
which such person’s intent or other statement can be inferred”.This section confirms that
an expression of intent in electronic format will be valid and admissible. From
these provisions it is clear that, electronic signatures and electronic documents are
permitted and legally enforceable, thus, allowing for the implementation of a digital means
of transacting and signing.
The definition of “Electronic Signatures” is not very clear in explaining exactly what
constitutes an electronic signature and can be open to interpretation. This definition can be
simplified - an electronic signature needs to consist of a positive act, it must be able to
identify the signatory, the signature must be verifiable, and it must be visible.
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