units at four different locations, subject to mobile dispensing units agreement, referred
to as master agreement. The rental agreements contained a non-variation clause
which stipulated that cancellation had to be reduced into writing and signed by parties.
The appellant was unable to meet its rental obligations, and cancelled the rental
agreements via email communication after the respondents agreed in an email
communication that appellant was free to walk away without incurring further costs
after settling arrear rentals and returning the equipment.350
The court dismissed the respondents’ argument that the email merely recorded a
negotiation and did not evince consensual cancellation of the master agreement but
was in relation to subsidiary agreements.
The court ruled that it was not in dispute
that the email communications which constituted data messages fell under the ambit
of the ECT Act. Email communication is defined as electronic mail, data message
used or intended to be used as a mail message between the originator and addressee
in an electronic communication.351 The pertinent issue was therefore, whether or not
the names appearing at the foot of the email constituted signature contemplated in
section 13(1) and 13(3) of the ECT Act.352
The respondents contended that the contract could only be cancelled by means of
advanced electronic signature required by law in terms of 13(1), which section should
further be interpreted to include formalities required by parties not only formalities
required by law. They submitted that the appellant did not comply with the requirement
of advance electronic signature. The court held that the respondents’ argument was
without merit because the non-variation clause was imposed by parties not by the law,
and also, having regard to the circumstances giving rise to the requirements of an
advanced electronic signature, it did not apply to private parties but intended to be
used for accredited authentication products designed to identify holder of electronic
signature to other parties.
The interpretation of the respondents would render
350
See id in para 10.
S1 ECT Act.
352 Para 17 of 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).
351
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