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Electronic communications and transactions act, 2002 No. 25 of
Legal recognition of data messages
(1) lnformation is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message.
(2) Information is not without legal force and effect merely on the grounds that it is not contained in the data message purporting to give rise to such legal force and effect, but is merely referred to in such data message.
(3) Information incorporated into an agreement and that is not in the public domain is regarded as having been incorporated into a data message if such information is--
(a) referred to in a way in which a reasonable person would have noticed the reference thereto and incorporation thereof; and
(b) accessible in a form in which it may be read, stored and retrieved by the other party, whether electronically or as a computer printout as long as such information is reasonably capable of being reduced to electronic form by the party incorporating it.
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.
(1) Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used.
(2) Subject to subsection (1), an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form.
(3) Where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if-
(a) a method is used to identify the person and to indicate the person's approval of the information communicated; and
(b) having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.
(4) Where an advanced electronic signature has been used, such signature is regarded as being a valid electronic signature and to have been applied properly, unless the contrary is proved.
(5) Where an electronic signature is not required by the parties to an electronic transaction, an expression of intent or other statement is not without legal force and effect merely on the grounds that-
(a) it is in the form of a data message; or
(b) it is not evidenced by an electronic signature but is evidenced by other means from which such person's intent or other statement can be inferred.
(1) Where a law requires information to be presented or retained in its original form, that requirement is met by a data message
(a) the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms of subsection (2); and
(b) that information is capable of being displayed or produced to the person to whom it is to be presented.
(2) For the purposes of subsection 1(a), the integrity must be assessed--
(a) by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display;
(b) in the light of the purpose for which the information was generated; and
(c) having regard to all other relevant circumstances.
Admissibility and evidential weight of data messages
(1) In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence--
(a) on the mere grounds that it is constituted by a data message; or
(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.
(2) Information in the form of a data message must be given due evidential weight.
(3) In assessing the evidential weight of a data message, regard must be had to--
(a) the reliability of the manner in which the data message was generated, stored or communicated;
(b) the reliability of the manner in which the integrity of the data message was maintained;
(c) the manner in which its originator was identified; and
(d) any other relevant factor.
(4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.
(1) Where a law requires information to be retained, that requirement is met by retaining such information in the form of a data message, if-
(a) the information contained in the data message is accessible so as to be usable for subsequent reference;
(b) the data message is in the format in which it was generated, sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and
(c) the origin and destination of that data message and the date and time it was sent or received can be determined.
(2) The obligation to retain information as contemplated in subsection (1) does not extend to any information the sole purpose of which is to enable the message to be sent or received.
Production of document or information
(1) Subject to section 28, where a law requires a person to produce a document or information, that requirement is met if the person produces, by means of a data message, an electronic form of that document or information, and if--
(a) considering all the relevant circumstances at the time that the data message was sent, the method of generating the electronic form of that document provided a reliable means of assuring the maintenance of the integrity of the information contained in that document; and
(b) at the time the data message was sent, it was reasonable to expect that the information contained therein would be readily accessible so as to be usable for subsequent reference.
(2) For the purposes of subsection (1), the integrity of the information contained in a document is maintained if the information has remained complete and unaltered, except for--
(a) the addition of any endorsement; or
(b) any immaterial change, which arises in the normal course of communication, storage or display.
Notarisation, acknowledgement and certification
(1) Where a law requires a signature, statement or document to be notarised, acknowledged, verified or made under oath, that requirement is met if the advanced electronic signature of the person authorised to perform those acts is attached to, incorporated in or logically associated with the electronic signature or data message.
(2) Where a law requires or permits a person to provide a certified copy of a document and the document exists in electronic form, that requirement is met if the person provides a print-out certified to be a true reproduction of the document or information.
(3) Where a law requires or permits a person to provide a certified copy of a document and the document exists in paper or other physical form, that requirement is met if an electronic copy of the document is certified to be a true copy thereof and the certification is confirmed by the use of an advanced electronic signature.
(1) A requirement in a law for multiple copies of a document to be submitted to a single addressee at the same time, is satisfied by the submission of a single data message that is capable of being reproduced by that addressee.
(2) An expression in a law, whether used as a noun or verb, including the terms "document", "record", "file", "submit", "lodge", "deliver", "issue", "publish", "write in", "print" or words or expressions of similar effect, must be interpreted so as to include or permit such form, format or action in relation to a data message unless otherwise provided for in this Act.
(3) Where a seal is required by law to be affixed to a document and such law does not prescribe the method or form by which such document may be sealed by electronic means, that requirement is met if the document indicates that it is required to be under seal and it includes the advanced electronic signature of the person by whom it is required to be sealed.
(4) Where any law requires or permits a person to send a document or information by registered or certified post or similar service, that requirement is met if an electronic copy of the document or information is sent to the South African Post Office Limited, is registered by the said Post Office and sent by that Post Office to the electronic address provided by the sender.
In an automated transaction
(a) an agreement may be formed where an electronic agent performs an action required by law for agreement formation;
(b) an agreement may be formed where all parties to a transaction or either one of them uses an electronic agent;
(c) a party using an electronic agent to form an agreement is, subject to paragraph (d), presumed to be bound by the terms of that agreement irrespective of whether that person reviewed the actions of the electronic agent or the terms of the agreement;
(d) A party interacting with an electronic agent to form an agreement is not bound by the terms of the agreement unless those terms were capable of being reviewed by a natural person representing that party prior to agreement formation.
(e) no agreement is formed where a natural person interacts directly with the electronic agent of another person and has made a material error during the creation of a data message and--
(i) the electronic agent did not provide that person with an opportunity to prevent or correct the error;
(ii) that person notifies the other person of the error as soon as practicable after that person has learned of it;
(iii) that person takes reasonable steps, including steps that conform to the other person's instructions to return any performance received, or, if instructed to do so, to destroy that performance; and
(iv) that person has not used or received any material benefit or value from any performance received from the other