Signed, sealed and delivered (electronically): Embracing the digital takeover. A brief consideration of electronic signing and delivery in South African law

• Citation: (2022) 33 Stell LR 618
• DOI: https://doi.org/10.47348/SLR/2022/i4a3
• Published date: 28 March 2023
• Pages: 618-636
• Author: Singh, C.
• Date: 28 March 2023

618

https://doi.org /10.47348/ SLR/2 022/i4 a3

SIGNED, SEALED AND DELIVERED

(ELECTRONICALLY): EMBRACING THE DIGITAL

TAKEOVER. A BRIEF CONSIDERATION OF

ELECTRONIC SIGNING AND DELIVERY IN

SOUTH AFRICAN LAW

Ciresh Singh

LLB LLM PhD (UKZN)

Associate Professor, Department of Mercantile Law

University of South Africa

Abstract

The advent and advancement of technology, in particular the digitalisation

of commerce and traditional working methods, have introduced a new era

of the “digital age” into human history. Digitalisation has taken over many

economic activities and industries and is slowly nding its way into the legal

system. Internationally, many businesses are using technology to automate

their processes and practices, making it much easier, quicker, and cheaper

to nalise their products and services. From a legal perspective, several

businesses are now concluding commercial transactions and contracts

electronically. These new innovations have raised the question of the legal

validly of these transactions, in particular the legitimacy of electronic signing

and electronic delivery of these documents.

In South Africa, the outbreak of the COVID-19 pandemic prompted

many local companies to consider new ways of conducting business without

compromising the legality and compliance aspect of operations. Electronic

signatures and electronic delivery have consequently become essential tools

for concluding legal agreements and conducting other daily business practices.

The move to digital signing and delivery has thus become more prevalent

across all business sectors and naturally this has given rise to questions on its

legitimacy and security.

Keyword s: E-delivery; email; e-signing; signature; Electronic

Communications an d Transactions Act 25 of 2002

1 Introduction

In today’s modern society, it is difcult to imagine the world without

technology. The internet, social media, online shopping and emails have

become a common part of everyday life. Technology has created, and

continues to create, a new economic landscape which has revolutionised the

(2022) 33 Stell LR 618

© Juta and Company (Pty) Ltd

https://doi.org /10.47348/ SLR/2 022/i4 a3

global economy and fundamentally changed the way we communicate.1 The

world has embraced the rapid pace in which technology has become integral

to human existence, and it is interesting to note that mediums such as the

World Wide Web and Google were established less than 30 years ago.2 The

digital revolution has occurred so rapidly that its character and implications

from a commercial and legal perspective have not yet been fully understood.3

Technology has taken over our lives and it is estimated that there are 5 billion

internet users worldwide, 500 million of which are in Africa and 42 million of

which are in South Africa.4 The age of digitalisation has changed the way we

interact with one another, and from a legal perspective it has changed the way

contracts and other legal and commercial transactions are concluded.

As a result of these technological advancements, many countries have

been prompted to create or develop e-commerce laws and build new

legal frameworks for this emerging digital sector. Many of these laws are

modelled on the 1996 United Nations Commission of International Trade law

(“UNCITRAL”) Model Law on Electronic Commerce 1996 (“MLEC”) as

well as the UNCITRAL Model Law on Electronic Signatures 2001.5 These

Model Laws were an early response by the international community to some

of the uncertainties surrounding e-commerce, especially in the light of the

quick growth of the internet.6 The advantage of the Model Laws is that they

provided a basic guideline to lawmakers around the world on how to draft their

e-legislation.7

In South Africa, the Electronic Communications and Transactions Act

25 of 2002 (“ECTA”) is the primary legislation which governs digital

1 See S Ei selen “E-Com merce” in D Van der Merwe Information and Communications Technology Law

3 ed (2016) ch 6; S Gereda “ The Electro nic Commun ications an d Transactio ns Act” in L Tho rnton, Y

Carrim , P Mtshaulana & P Reyb urn (eds) Telecommunic ations Law in So uth Africa (2006) 263; J Co etzee

“The Elect ronic Commu nications an d Transactions Act 25 of 20 02: Facilitating Electronic Commerce”

(2004) 3 Stell LR 501

2 See Google “ From the garage to the Googleplex” Google <https://aboutgoogle/our-story/> (accessed

13-12-2022); The Editors of Encyclop aedia Brita nnica “World Wide Web” (19-10-2022) Britannica

<https://ww wb ritannica com/topic/ World-Wide-Web> (accessed 13-12-2022) The World Wide Web was

established i n 1990, and Google was est ablished in 1998

3 Gereda “T he Electronic Communic ations and Transactions Ac t” in Telecommunication s Law in South

Africa 263

4 See <https://www statista com/statistics/617136/digital-population-worldwide> for statistical informa-

tion in respe ct of the use of the inter net in Africa

5 See J Coetzee “ The Convention on the Use of Electron ic Communications in I nternational Contra cts:

Creating an In ternational Legal Framework for Electron ic Contra cting” (20 06) 18 SAML J 245 246; S

Eiselen “Fiddli ng with the ECT Act – Electronic Sign atures” (2014) 17(6) PELJ 2805 <https://www ajol

info/index php/pelj/article/view/113820> (accessed 12-12-2022)

6 See Eiselen “E- Commerce” in Information and Communications Technology Law 164; United Nations

Commission of Inter national Trade law (“UNCITR AL”) Promoting Confidence in Electronic Commerce:

Legal Issues on I nternation al Use of Electroni c Authenticat ion and Signat ure Methods (200 9) The

UNCITR AL re cognised the uncertai nty t hat ma y ari se fr om the widesp read g rowth of e- commerce

and responded to this challenge by publishing the Model Law on Electronic Commerce 1996 (“MLEC”)

which can be found i n UNCITRAL Model L aw on Electronic Comme rce with Guide to Enact ment 1996

with Addition al Article 5 Bis as Adopted in 1998 (1999) and t he Model Law on Electronic Signatures

2001 (“MLES”) which can b e found in U NCITRAL Model Law o n Electronic Signatu res with Guide to

Enactment 2001 (2002)

7 Eiselen (2014) PELJ 280 7

SIGNED, SEALED AND DELIVERED (ELECTRONICALLY):

EMBRACING THE DIGITAL TAKEOVER 619

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