So let’s move onto the 3rd and 4th category of electronic signature , i.e. those not specifically dealt with in the ECTA. Firstly, where the parties formally agree to a format so the parties can agree in writing (which can include an electronic exchange such as email, SMS or Whatsapp), how they will acknowledge and respond to each other’s correspondence? This is subjective and there may be many variations.
More prevalent in everyday communications is the 4th permutation, the deeming or implied scenario. This was discussed in the Spring Forest case. First let’s look at the facts of the case. The lessee had sent an email to the landlord cancelling the lease agreements and the landlord responded by email, confirming the cancellation. The landlord later denied this cancellation and argued that there was a non-variation clause in the agreement that could only be cancelled in writing with both parties’ signatures. This case therefore focused on the non-variation clause in a lease agreement which stated that no variation of the agreement or cancellation of the agreement would be of force unless such variation or cancellation was reduced to writing and signed by both parties.
The issue the court had to decide upon was whether or not a person’s email signature met the requirements of an electronic signature, as required by the ECTA. The court found this because the names of both parties at the bottom of their emails:
* Were intended to serve as signatures
* Constituted data
* Were logically, ‘‘clearly and unambiguously’ associated with the data in their emails.
* Identified the parties.
Let’s take this judgment a step further. In my view what the court essentially also established is that there was an implied, tacit acceptance that the exchange (which the Spring Forest case confirmed constitutes data) constituted an acceptable and binding form of communication. Over and above the rationale of the court pertaining to the electronic signature, if you enter into an agreement where consent is sufficient, then electronic consent alone is sufficient – you don’t have to add a signature. The ECTA itself (Section 24) indicates that ‘other means from which intent can be inferred’ is acceptable. So the ‘tick box’ ‘click and accept’ methodology reflects a ‘positive action indicating assent’
It should also be borne in mind that when the Consumer Protection Act, Act 68 of 2008 (‘the CPA’) is applied to a dispute, the adjudicating body is directed to bear in mind and consider the course of conduct between the parties (Section 52 (2) (h)). So when a party who regularly enters into transactions with the same supplier using e.g. the ‘click and accept’ system (and all of the T&C that are usually included and specifically referred to), such a consumer will be hard-pressed to refute the transaction relying on his ‘non-binding’ signature!
Copyright Adv Louis Nel t/a louis-THE-lawyer
May 11 2020
DISCLAIMER – Each case depends on its own facts & merits – the above does not constitute advice – independent advice should be obtained in all instances