Electronic signatures in online transactions

Abstract

There are several laws and some notable judicial decisions across the globe to regulate electronic signatures. These judicial decisions when interpreting legislation are not consistent with each other. They leave much to be desired. There are still problems with the validity of an electronic signature. In this paper the author mainly focuses on the South African model. The major legislation regulating the use of electronic signatures in South Africa is the Electronic Communications and Transactions Act 25 of 2002. It has recently been interpreted in the case of Spring Forest Trading v Wilberry by the High Court of KwaZulu-Natal (KZN) and the highest court of South Africa, the Supreme Court of Appeal (SCA). However, there is a wide difference in the approaches of the High Court of KZN and the SCA. Even in other jurisdictions judicial decisions have not helped towards clarifying the law; rather one has to wade through conflicting approaches of judges to understand where the law is going. The paper concludes with a few recommendations, which if adopted may help clarify the legal position of electronic signatures in South Africa and worldwide.