inherently obligatory. It sufficed that the legislature stated that the law requires a
certain information to be in writing, as reflected in the preliminary sentence in section
8(1). It is submitted, therefore, that the said part of subsection 8(1) is redundant. The
drafters are recommended to delete section 8(1) to the extent that it reads that the law
attaches consequences where the information is not in writing. Section 8(2) should be
removed in its entirety for the said lack of clarity.
3.2.15.2 The ‘in writing’ requirement tie: Figure 2
Retention
requirement
Production of
information or
document
requirement
Original
requirement
"in writing"
requirement
3.2.15.3 RSA Court decision on ‘in writing’ and signature requirements
In Spring Forest Trading 599 CC v Wilberry (Pty) (Ltd) t/a Ecowash and Another, 348
the court enunciated the principles of ‘in writing’ and signature requirements in
electronic contracts. It is an important reference for the use of data messages in
electronic contracting.349 The respondents and the appellant entered into a written
agreement in terms of which the former appointed the latter as an operating agent of
its mobile dispensing units in its car wash business. Subsequently, four agreements
were entered into between the parties allowing appellants to lease mobile dispensing
348
Spring Forest Trading 599 CC v Wilberry (Pty) Ltd (725/13) [2014] ZASCA t/a Ecowash available at www.
saflii.org/za/cases/ZASCA/2014/178.html (accessed 30 July 2015).
349 Kelso, L. (1015). “Electronic communications and contracts” June 14.
44