The Electronic Communications and Transactions Act (“the act”) determines the validity electronic signatures in South Africa. The object of the act is to enable and facilitate electronic communications in the public for various interests. The act stipulates its specific sphere of application, and thereby excludes its application to an agreement for the alienation of immovable property as provided for in the Alienation of Land Act.

On the above grounds, it would seem correct that the courts would follow the exclusion of the act from the sphere of deeds of alienation. However, this is not the case. In the recent Eastern Cape High Court in Borcherds and Another v Duxbury and Others, the respondents in the case sought to have the agreement set aside based on the fact that the purchaser signed the agreement electronically, and the seller’s reasoning was based on the Electronic Communications and Transactions Act and the formality requirements set by the Alienation of Land Act that stipulates a deed of sale has to be in writing and signed by all parties – the agreement was void.  The crux of the matter came to the fact that the Alienation of Land Act does not define “sign” or “signed” – and therefore, the judge found that the seller’s had the intention of alienating the land and being bound by the contract, therefore the contract was valid and binding.

Regardless of the precedent set in this case, due to the vague nature of the guidance given by the court, this type of matter will have to be decided ad hoc. Until the legislature provides certainty through an amendment of the Alienation of Land Act through the inclusion of a specific definition of “sign” or “signed” – this will be for the sphere of the litigators.