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Contracting Out of the Use of Electronic Signatures

Section 12 of the Electronic Communications and Transactions Act states the following:

A requirement in law that a document or information must be in writing is met if the document or Information is-

(a) in the form of a data message; and

(b) accessible in a manner usable for subsequent reference…

Emails and SMS’s qualify as data messages as they satisfy the "in writing" requirement.

By way of an example, if an employee’s employment contract does not have a clause that specifically contracts out of electronic signatures, it will be permissible for the employee to resign by way of SMS or email provided that the data message satisfies the test of whether it evidences a clear and unequivocal intention to resign.

If you want to make it absolutely clear that your company will only regard itself bound by a conventional signature, you must stipulate in your contract of employment (or any other contract) that 'signed' refers to a hand-written signature, excluding any signature appended by 'electronic communication' as defined in the Electronic Communications and Transactions Act, no. 25 of 2002.

You may want to take a leaf from this email disclaimer that I received:

  1. This message and any attachments are confidential and intended solely for the addressee. If you have received this message in error, please notify the sender immediately. Any unauthorized use, alteration or dissemination is prohibited.
  2. ABC (Pty) Limited (Registration Number 1980/000000/07), including any one of its subsidiaries from which this message emanates, accepts no liability whatsoever for any loss whether it be direct, indirect or consequential, arising from information made available and actions resulting there from.
  3. Please note that ABC (Pty) Limited and all its subsidiaries only bind themselves by way of signed agreements. 'Signed' refers to a hand-written signature, excluding any signature appended by 'electronic communication' as defined in the Electronic Communications and Transactions Act, no. 25 of 2002.
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