The main object of the Electronic Communications and Transactions Act (ECT Act) is to facilitate electronic communications and transactions. One of the subordinate objects is to promote legal certainty. An aspect of legal certainty is to know when a document has been signed and when not.
A signature has been defined as a person’s name written in a distinctive way as a form of identification in authorising a document. However, the courts have accepted any mark made by a person in order to identify it as that person’s authorising act. So, for example, the courts have recognised that documents may be signed with an “X” in certain circumstances, and have also accepted a mark made by another person as being a person’s signature.
The ECT Act envisages two types of signatures; an “electronic signature” and an “advanced electronic signature”. An ordinary “electronic signature” is electronic information (e.g. a typed name) associated with other data (e.g. the text of an email) and logically intended by the user to serve as a signature. An advanced electronic signature is a signature which results from a process approved by the .za Domain Name Authority (which is an organisation established in terms of the ECT Act).
The ECT Act states that where a signature is required by law, and the law does not specify the type of signature, then the signature requirement in relation to a data message (e.g. an email) is only met if an advanced electronic signature is used. On the other hand, and importantly, where a signature is required by the parties to a transaction (as opposed to being required by law), and the parties have not agreed the type of signature to be used, an ordinary electronic signature will suffice if a method is used to identify and indicate the person’s approval of the information communicated, and the method is reliable.
When you type your name at the end of an email it is associated with the data in the email, logically associated with the text of the email and intended by you to serve as a signature. Accordingly typing your name at the end of an email will suffice for purposes of amending a contract which includes a clause stating that an amendment will not be effective unless it is in writing and signed by both parties.
Given the pervasive use of email in the workplace and in commercial interactions, it is imperative to exercise caution. This can be achieved by educating employees and customers about electronic signatures and by using an email disclaimer to prevent an email message being construed as varying agreements. It may also be necessary to re-draft non-variation clauses to ensure that agreements are not unintentionally varied by email.
Dylan Bradford and Alison Pillay
Garlick & Bousfield