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What are the courts saying about esignatures

What are the courts saying about e-signatures?

Tech Talk Legal, a series of free webinars that discuss the impact of technology on lawyers’ interactions with their clients and how legal professionals can use technology to enhance their practice, kick off at the end of this month.

The first webinar, on Friday, 28 January, will focus on how technologies can be used to allow for more streamlined client engagement.

With the advent of electronic communications and the ability to interact digitally, documentation, whether it be an affidavit or a contract, can now be signed online. After a flurry of activity nearly a decade ago when the Electronic Communications and Transactions Act (ECTA) came into effect, the legislators have been quiet and, as a result, legislation has not kept pace with advances in technology. The courts, however, have been more pragmatic, particularly during Covid-19.

The webinar will look at two cases:

  • Massbuild (Pty) Ltd t/a Builders Express, Builders Warehouse and Builders Trade Depot v Tikon Construction CC and Another (relating to a pre-Covid matter); and
  • Knuttel NO and Others v Shana and Others (very much Covid-related).

In Massbuild vs Tikon, the Gauteng High Court found that suretyships, when signed and exchanged electronically, are unenforceable if an advanced electronic signature is required but not applied in terms of the ECTA.

In Knuttel vs Shana, the deponent to the founding affidavit was infected with Covid-19 and certain extraordinary steps were taken for the commissioning of the oath. The procedure followed by the legal practitioner was as follows:

  • An unsigned draft founding affidavit was emailed to the deponent with instructions to read, initial and sign it before emailing it back to the legal practitioner.
  • The legal practitioner engaged the services of a commissioner who, in the legal practitioner’s presence in the office of the commissioner, spoke to the deponent via a video WhatsApp call.
  • Having identified the deponent as the person she professed to be, the commissioner posed the usual questions before she administered the oath in the conventional way, except that the deponent initialled and signed the affidavit prior to the video call.

The court had to consider whether these steps constituted substantial compliance with the requirements for commissioning. In essence, the court found that it did.

The panel discussing these cases will be Louis Podbielski, the editor-in-chief of Louis Case Law, Malcolm Pearson, the publisher of Tech4Law, and Neil Summers, the manager of business development and sales at Moonstone Information Refinery.

They will aim to keep their discussion short and to the point and, in an effort to keep the session collaborative, focus more on participants’ comments and queries.

The webinar will be held between 11am and midday on Microsoft Teams. Click here to register.

Click here to join the Tech Talk Legal group on LinkedIn.

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