Electronic Documentations: Legal Recognition
Electronic Communications and Transaction Act 25/2002
( summary – with compliments to Compliserve )
This summary is intended to provide general guidance and does not constitute advice
relating to specific instances.
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It is important that you also read the full text of the ECT Act 25/2002
The ECT Act does not compel anyone to use or receive information in electronic form,
nor does it prohibit anyone specifying requirements for the manner in which they will
accept data messages. The ECT Act may therefore not discriminate between papers
and electronic documents. Effectively, the ECT Act does not create new ways of doing
business; it only facilitates and gives legal recognition to the new ways of doing business
i.e. through electronic documentations.
Section 11: Legal Recognition of data messages
· Provides for the legal recognition of data messages. Information that is wholly or
partly in the form of a data message is not without legal force and effect merely
because of the fact that it is in the form of a data message.
· ‘Data message’ is data that is generated, sent, received or stored by electronic means
and includes voice where the voice is used in an automated transaction and a stored
record. ‘Data’ means any form of electronic representations of information.
· Information can be incorporated by reference, provided that such information is
referred to in a way in which a reasonable person would notice such reference and
incorporation and provided further that such information is accessible in a form in
which it may be retrievable and stored, whether electronically or in the form of a
computer printout.
Please note: Not all information in the form of data message or referred to in a data
message will be given legal force and effect, since section 11 is not intended
to CompliNEWS 30 May 2008 15 override any mandatory provisions in South African
law relating to data messages.
Section 12: Writing
A requirement in law that a document or information be in writing is met if the
document or information is in electronic format that is accessible in such a manner
that the person retrieving it would be able to use it afterwards.
Generally, all documents and agreements that previously had to be in writing can be
generated electronically, except the following:
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Agreements for the sale of immovable property
A long term lease of immovable property for 20 years or more
The execution, retention and presentation of a will or codicil
The execution of a bill of exchange
Documents/agreements, which by agreement between the parties may not be
generated electronically.
Le Roux v Hon Magistrate Mr. Viana (2007) SCA 173 (RSA): The Supreme Court
of Appeal found that judicial notice should be taken of the technological advancements
regarding electronic data creation, recording and storage. The Supreme Court of
Appeal also referred to and quoted Section 12 of the ECT Act.
Section 13: Signature
The effect of this section is to give legal recognition to electronic signatures. However,
where the law requires a signature, only an advanced signature shall be used. An
advanced electronic signature is an electronic signature that can be authenticated only
by an agency that has been accredited by the Department of Communications in terms
of section 37 ECT Act.
Where contracting parties failed or neglected to agree on the electronic signature to be
used, the presumption is that the requirement of a signature is met if a method is
used to identify the person (who has purportedly ‘signed’ the electronic
communication) and to indicate such person’s approval of the message. Such an
expression of intent can be made by any means from which such person’s intent can
be inferred.
Section 14: Original
For purposes of this provision, it should be noted that a computer printout of an
‘original’ electronic document does not constitute an original. An original message
remains in electronic form, and it is the first generated copy by the sender or an agent
of the sender.
Section 16: Retention
Information can be retained electronically, provided it is retained in the format in
which it was generated, sent or received; or in the format that can be demonstrated to
represent accurately the information generated, sent or received.
This provision makes retention easier for those institutions required to keep records,
either by virtue of the nature of their business or by law.
Section 22: Formation and validity of agreements
The mere fact that an agreement was concluded wholly or partly through data
messages does not imply that such an agreement will be without legal force and
effect.
The time and place of formation of an agreement, concluded through data messages,
will be the time and place where the offer or receives the acceptance of the offer.
Section 23: Time & place of communications, dispatch and receipt
· There is a presumption that a data message has been sent when it enters an
information system outside the control of the originator. If the originator and
addressee are using the same information system, the presumption is that the
message has been sent when it is capable of being retrieved by the addressee.
· A data message must be regarded as having been received by the addressee when
the
complete data message enters an information system designated and used for that
purpose by the addressee and is capable of being retrieved and processed by the
addressee.
· An electronic transaction is deemed to have been concluded at the time when and the
place where the acceptance of the offer is received by the offer or.
· Please note: These deeming provisions apply only if parties (to an agreement) have
not agreed otherwise.
Practical implications of the ECT Act
Business needs to make sure that all client communications, online advertisement and
notices comply with the requirements for “legal” spamming as per the Act.
· Business needs to be mindful of which types of databases the Minister will declare as
being a critical database. They will then be required to comply with the requirements
specified by the Minister for the storage and management of such databases. They will
also be required to register such databases and supply the details of the administrator
of the database.(see section 53 & 54)
Business who wish to store information or company documents, which are required by
law to be stored, in electronic format can do so, provided that they comply with the
requirements for storage of electronic data.
Business must assess their risk very carefully before they toss out all paper
documentation, because
(i) It is not clear from the wording of the Act that where an
original is paper based and then is converted to an electronic form and such “original”
is required to be kept in terms of a law, that the requirements of that law is fulfilled by
retaining the electronic version only.
(ii) In some cases, such as with cheques or claims
forms or the like which require an original signature, where such documents are
signed in handwriting, it may be prudent for the business to retain the original
paperbased document for use in subsequent litigation proceedings, where it may be
necessary to carry out forensic examination of the actual signature for example, to
prove forgery.
Please note:
Information for this summary was sourced from academic writers and various
reliable websites.
This summary highlights the most important sections around the legal
recognition of electronic documentations and the practical implications in
terms of the ECT Act.
This summary is intended to provide general guidance and does not
constitute advice relating to specific instances.
 It is important that you also read the full text of the ECT Act 25/2002.