Should the Electronic Communications and Transactions Act be amended to include electronic signatures for the sale of immovable property in South Africa?

• Citation: (2023) 140 SALJ 795
• DOI: https://doi.org/10.47348/SALJ/v140/i4a5
• Published date: 08 November 2023
• Pages: 795-812
• Author: Reddy, N.
• Date: 08 November 2023

795

https://doi.org/10.47348/SALJ/v140/i4a5

SHOULD THE ELECTRONIC

COMMUNICATIONS AND TRANSACTIONS

ACT BE AMENDED TO INCLUDE

ELECTRONIC SIGNATURES FOR THE SALE OF

IMMOVABLE PROPERTY IN SOUTH AFRICA?

NIR ISSA REDDY†

Lecturer, North-West University

Electronic sign atures have become a c ore feature of digital transformation.

Organisations can now transact with greater ease, regardless of physical distance or

national borders. The Electronic Communications and Transactions Act 25 of 2002

facilitates electronic communications and transactions using electronic documents and

signatures in South Africa. Electronic contracts and signatures are legally binding

and constitute valid a nd admissible evidence in legal pro ceedings, although there are a

few exception s. One of the exclusions concerns agreements for the sale of immovable

property. The Alienation of Land Ac t 68 of 1981, which regulates the sale of land,

seeks to promote lega l certainty as to the authe nticity and contents of these c ontracts to

limit instances of fraud and litigation. This article examines the risk associa ted with

fraud and the case o f Borcherds v Duxbur y 2021 (1) SA 410 (ECP). In this case,

contrary to legi slation, the court ac cepted an electronic signature in a contract for the

sale of immovable prop erty. I recommend that the relevant legislation be a mended to

validate the use of advan ced electronic signatures for the sale of immovabl e property.

A holistic approach to electronic signatures is the only way to embrace an inevitable

and complete digital transformation.

Electron ic Communica tions and Transa ctions Act – elect ronic signature –

fraud – im movable property

I IN TRODUCT ION

Electronic signatures have become a core feature of digital trans-

formation. Organisat ions can now transact with greater ease, regardless

of physical distance or nationa l borders.1 Electronic signatures

have become a funda mental tool for concluding contracts since the

Covid-19 pandemic and governments’ imposition of social-distancing

requirements worldwide.2 However, even before the pandemic, electronic

transactions had become increasingly popular in the twenty-rst century.

† LLB (UKZ N) LLM (Uni sa).

1 Juana Coetzee ‘T he Electronic C ommunicat ions and Transac tions Act 25

of 2002: Faci litati ng electronic com merce’ (2004) 15 Stellenbosch LR 501;

Aashi sh Srivastava ‘E lectronic signature s in online t ransact ions: Lessons f rom

South Afr ica’ (2016) 45 Common Law World Review 141 at 141–2; Yeukai

Mupangavanhu ‘Electron ic signatu res and non-var iation clauses in the modern

digita l world: The case of South Af rica’ (2016) 133 SALJ 853 at 853– 4.

2 Ciresh Sing h ‘Sign on the digita l dotted line — Evalua ting the legal val idity

of electronically sig ned documents’ 2021 (August) De Rebus 2 0 available at

(2023) 140 SALJ 795

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796 (2023) 140 TH E SOUTH AFRICA N LAW JOURNAL

https://doi.org/10.47348/SALJ/v140/i4a5

Naturally, the need for the regulation and authentication of these types

of transactions arose.3 The Electronic Communications and Transactions

Act 25 of 2002 (‘ECTA’) is the South Af rican legislation that recog nises

and regul ates transactions concluded electronically. The ECTA facilitates

electronic communications and transact ions and allows for the use of

electronic documents and signatures.4

Mostly, the ECTA alig ns itself with the UN pr inciples articu lated in the

UNCITR AL Model Law on Electronic Com merce 1996 (‘MLEC 1996’).5

The approach that the M LEC 1996 took towards electronic commerce was

one of technological neutrality6 and funct ional equiva lence. Functiona l

equivalence cons iders how a paper-based require ment could be substituted

with an electronic-commerce tech nique.7 Does the electronic technique

ful l the requirements of a paper-based docu ment? Is the document

legible and accessible to all? Wil l it remain un altered over time? Can it be

reproduced? Does it provide for authentication throug h signatures? Is it

legally acceptable?8

In 2001 the UN’s further addition of the UNCITRA L Model Law

on Electronic Signatures (‘MLES 2001’)9 reiterated the pr inciples of

non-discrimination, technolog ical neutra lity and f unctional equivalence.

The MLES 20 01 also set out criteria for technica l reliability between

electronic and h andwritten signatures.

The ECTA recognises two types of leg ally bind ing electronic

signat ures. These are cal led ‘electronic signat ures’ and ‘advanced electron ic

signatures’ (‘AES’).10 The origin of the A ES in South African l aw is based

on the Electronic Signatures Directive 1999/93/EC.11 This directive was

repealed in 2016 by the European Union Regulation No910/2014 of t he

European Parl iament and of the Council of 23 July 2014 on electronic

https://www.derebus.org.za/sign-on-the-digital-dotted-line-evaluating-the-legal-validity-

of-electronically-signed-documents/, accessed on 6 Februa ry 2023.

3 Wennette Jacobs ‘The Elect ronic Commun ications and Tran sactions Act:

Consumer prot ection and inter net contracts’ (2004) 16 SA Merc LJ 556 at 556 –7;

Sieg Eiselen ‘Fidd ling with t he ECT Act — Electronic si gnatures’ (2014) 17 PER/

PELJ 2805.

4 See the long title to the ECTA.

5 See https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic_commerce at 20 –1;

Tana Pistoriu s ‘Contract format ion: A comparative per spective on the Model Law

on Electron ic Commerce’ (2002) 35 CILSA 129 a t 130.

6 Sect ion 2(1)( f) of the ECTA and Ketler Investments CC t/a Ketler Presentations

v Internet Se rvice Providers’ Association 2014 (2) SA 569 (GJ) par a 30.

7 MLEC 1996 at 20–1.

8 Ibid.

9 See https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic _signatures.

10 Section 13 of the ECTA and Christo Pienaar, Vania Mun ro, Rieka van-

Wyk et al Information Technology Contracts (2018) 206–7.

11 Lee Swales ‘The re gulation of ele ctronic sig natures: Ti me for review and

amendment’ (2015) 132 SALJ 257 at 262.

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