Electronic Signatures and Non-Variation Clauses in the Modern Digital World: The Case of South Africa
Authors Yeukai Mupangavanhu
Affiliations: Senior Lecturer, University of the Western Cape
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 853 – 873
A non-variation clause prescribes writing and signature for any variation of a written contract. An oral variation of a written contract is thus ineffective as a non-variation clause entrenches itself and all the other terms of the contract, including a non-cancellation clause, against oral variation. Where parties have reduced the subsequent oral agreement to writing through an e-mail, it must be signed. Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash & another 2015 (2) SA 118 (SCA) is significant as it is the first case directly to confirm the legal validity of the use of an e-mail and an ordinary electronic signature when varying or cancelling a contract which contains a non-variation clause. The Supreme Court of Appeal stated in this case that a contract can be formally varied by an exchange of e-mails between the parties with an ordinary signature. An advanced electronic signature in such a case is not required.