electronic signature in section 13(3) superfluous, the court held. This issue was also
addressed by Eiselen.353
The respondents further argued that the application of section 13(3) did not take the
appellants’ case any further as the email transaction pertained to oral negotiations and
did not constitute a separate transaction, if it did constitute a separate transaction,
there was no requirement for electronic signature as envisaged under the section, and
finally there was no reliable method used to identify and indicate the parties’ approval
of information communicated in the emails. The court overruled the respondents’
contention that the email communication did not constitute a separate transaction,
instead only amounted to oral negotiations pertaining to a written agreement. The
learned judge held that in fact the oral negotiations were reduced to writing in the form
of emails and consensually constituted cancellation as section 22 emphatically
provides that an agreement is not without legal force or effect because it is in the form
of data message.354
Second, the court held that the parties required electronic signature to cancel the
agreements, but did not specify the type of the signature to be used, therefore section
13(3) was applicable under the circumstances. The court held that typewritten names
of the parties at the foot of the emails, which were used to identify the users,
constituted ‘data’ that is logically associated with the data in the body of the emails, as
envisaged in the definition of an ‘electronic signature.’ This was said to accord to
pragmatic as opposed to formalistic approach which fulfils the function of a signature
to authenticate the identity of the signatory rather than on the form of the signature
used. The court further found that there was no dispute regarding reliability of emails,
the accuracy of information, and the identity of the parties who appended their
signature whose clear intention was to cancel the contract. The appeal was
accordingly confirmed.355
353
Eiselen, S. (2014) “Fiddling with the ECT Act: electronic signatures” 17 Potchefstroom Law Journal 2814 2815. Para 22 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).
354 Para 24 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).
355 See id in para 32.
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