Big risks for South Africans who use email signatures
Many South Africans have email signatures, but legal experts have warned that these signatures can be legally binding.
South Africans are increasingly turning to digital documents to facilitate the electronic signing of documents.
However, it is crucial to understand how email signatures and electronic communications can legally bind you to contract changes.
Daniellé Giannico and Nikita Lalla from LNP Beyond Legal broke down some of the Key Takeaways from the Electronic Communications and Transactions Act 25 of 2002 (ECT).
Most well-drafted contracts include a non-variation clause, which essentially states that no changes to the agreement are valid unless they’re in writing.
Both parties or their authorised representatives must also sign the agreement. These clauses aim to prevent unintended amendments.
That said, the ECT ECT Act introduced a new layer of complexity and defines two types of electronic signatures:
- Ordinary electronic signatures: e.g., a typed name in an email footer.
- Advanced electronic signatures (AES): verified by an accredited authority.
Under the ECT Act, an ordinary electronic signature is valid if it is intended as a signature and is logically associated with the data/message.
“This means that even a simple email footer, if it contains your name and designation, can meet the legal threshold for a signature,” said the experts.
Example in court
The matter was straightforward to see in a Supreme Court of Appeal case, which centred on an email exchange. The email had a standard email footer.
This email footer constituted a valid amendment to an existing agreement.
The court found that if the email footer was intended to serve as a signature, it clearly identified the sender and was logically connected to the email’s content.
It thus met the legal requirements for an electronic signature under the ECT Act.
This confirms that even if a contract includes a non-variation clause, valid amendments to the contract can be made through email exchanges.
For those who work in construction projects, especially contract administrators, one may unintentionally do the following by responding to an email:
- Agree to a contract amendment;
- Accept an instruction or variation;
- Accept early termination; or
- Commit to new terms
To ensure that no potential issues arise, the experts recommended including a contract non-variation or communications clause that contains sufficient safeguards regarding email communication.
One should also be cautious when discussing contract terms over email, as ambiguous language can be potentially interpreted as an agreement.
“The ECT Act has modernised contract law in South Africa, but it also means that your digital words carry legal weight,” said the experts.
“In today’s world, your email signature is more than just a formality; it could be your binding word. Stay informed, stay cautious, and when in doubt, get it reviewed before putting it in writing.”
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