A ruling by the South African Supreme Court of Appeal (SCA) on 21 November 2014 should be noted by anyone using e-mail, SMS and WhatsApp messaging, writes Ramsay Webber’s Gareth Cremen.
The landmark ruling determined that that e-mail negotiations and typed e-mail signatures are now binding. The SCA found that oral negotiations between parties that have been evolved into writing, in the form of e-mails – and, in this case – constitute an agreement to cancel written agreements.
According to the landmark ruling, typewritten names of parties at the foot of e-mails constitute “data” that is logically associated with the data in the body of the e-mails, as envisaged in the definition of an “electronic signature”.
While these signatures are not to be confused with an “advanced electronic signature”, they are considered to satisfy the requirement of a “signature”, and have the effect of authenticating the information contained in the e-mails.
In Spring Forest Trading versus Wilberry (725/13) [2014] ZA SCA 178 (21 November2014), the appeal concerned a series of e-mails purporting to consensually cancel written agreements between the parties.
The agreements required any “consensual cancellation” to be in writing and signed by them. The Electronic Communications and Transactions Act 25 of 2002 (the Act) gives legal recognition to transactions concluded electronically by e-mail.
The dispute between the parties required the Court to consider whether their exchange of e-mails met the writing and signature requirements of the Act, thereby constituting a consensual cancellation.
In review of the case, the Court said: “Regarding the first ground – that e-mails do not constitute a separate transaction – the simple answer is that they do. The oral negotiations between the parties were reduced to writing in the form of e-mails and constituted an agreement to cancel their written agreements. And Section 22 of the Act says emphatically that “[An] agreement is not without legal force and effect merely because it was concluded partly or in whole by means of data messages.”
Given the many forms of electronic communications we all use in business today, this is an important case and should be noted by businesses negotiating via electronic media.
Should you require legal assistance with understanding The Electronic Communications and Transactions Act 25 of 2002, we would be happy to assist you. Contact Gareth Cremen at on 011-778-0600 or mail us on info@ramweb.co.za