Electronic signatures: how should the Electronic Communications and Transactions Act 25 of 2002 be amended to facilitate increased use in South Africa?

Abstract

Technology reform has been exacerbated by the Covid-19 pandemic in South Africa with the result that business owners have to conduct day-to-day business operations by electronic means. This includes the authentication of electronic contracts and agreements by way of electronic signatures. However, the Electronic Communications and Transactions Act, 2002 does not facilitate the use of electronic signatures in South Africa. The Electronic Communications and Transactions Act aims to abide by the principle of technology neutrality and conform to international standards. However, the act has been criticised for adopting a technology specific approach as it prefers the use of PKI technology for the fulfilment of an advanced electronic signature. This dissertation reviews the legal framework regulating electronic signatures which includes recent South African case law, in particular, the cases of Spring Forest Trading v Wilberry, Global and Local Investments v Fouche and Borcherds v Duxbury. The judiciary has created some confusion amongst the legal fraternity surrounding the legal validity and use of electronic signatures when the Supreme Court of Appeal delivered two diverging judgements in the cases of Spring Forest Trading v Wilberry and Global and Local Investments v Fouche. The case of Borcherds v Duxbury adds to this confusion as the Eastern Cape High Court delivered a judgement which appears to suggest that an electronic signature does not satisfy the requirements of a signature. For the purposes of clarity, confirmation as to what is considered an electronic signature is required and users are forewarned to use handwritten signatures until the position is cleared. This dissertation proposes that South Africa conduct a review of the provisions of ECTA, which should aim to conform to international standards and cater for a wider variety of transactions that can be authenticated by way of an electronic signature, given the rapid pace at which technology develops.