Is an e-mailed 'go ahead' a binding acceptance?
What South Africa's ECT Act says about a client's e-mailed approval of a consulting proposal, and when a proper signature is the safer route.
By Achekam · · 5 min read · For Consulting businesses in South Africa
The proposal went out on Monday. On Wednesday the client's operations director replies: "Looks good, please go ahead, we need this before the board meets." The team starts on Thursday. Three months later a new finance director arrives, questions the fees and asks to see the signed agreement. There isn't one. There is an e-mail.
Whether that e-mail is enough depends partly on general contract law, which is a question for an attorney on the facts of each case, and partly on South Africa's Electronic Communications and Transactions Act, 2002 (the ECT Act). The Act does not decide whether a contract exists. What it does is stop a court from dismissing the client's agreement simply because it arrived as an e-mail instead of on paper. This article explains what section 13 says, and why turning an e-mailed yes into a signed document is still worth the effort.
Intent expressed in an e-mail: section 13(5)
Section 13(5) of the ECT Act, as published on Acts Online, provides that where parties do not require an electronic signature, an expression of intent is not without legal force merely because it is in a data message, or is evidenced by other means from which the person's intent can be inferred.
An e-mail is a data message. So if neither side said a signature was required, the operations director's "please go ahead" is not robbed of legal effect just because it was typed into an inbox. Whether it amounts to acceptance of the proposal, on the terms in the proposal, is then a matter for ordinary contract principles: was the proposal clear, did the reply accept it without changes, and did the person replying have authority to bind the client?
Those questions are where e-mailed acceptances become fragile. "Looks good" is not the same as "we accept your proposal dated 3 March at the fees stated". The person replying may not have had authority. The proposal may have been amended in a later thread.
When a signature is wanted but its type was not agreed
Section 13(3) deals with a different situation: the parties to an electronic transaction require an electronic signature but have not agreed on its type. In that case, the Act provides that the requirement is met if a method is used to identify the person and indicate the person's approval of the information communicated, and the method was as reliable as was appropriate in all the circumstances.
Suppose the proposal said, "This proposal becomes binding when signed by both parties." The parties have now required a signature. A reply e-mail that does not identify the person reliably, or does not clearly approve the proposal, may not meet that requirement. A signing process that records who signed and what they signed is far easier to defend.
The full text of section 13 is on Acts Online's page for section 13 of the ECT Act, which sets out each subsection on signatures, including the ones discussed here.
Electronic signatures are not invalid just for being electronic
Section 13(2) provides that, subject to subsection (1), an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form.
Subsection (1) is the important exception. Where a law requires a person's signature and does not specify the type, the requirement in relation to a data message is met only if an advanced electronic signature is used. So if a statute requires a particular document to be signed, a simple electronic signature will not do. For most commercial consulting agreements, the question is whether any law requires a signature at all; if you are unsure for a specific type of document, ask an attorney before relying on any electronic method.
Technology-neutral rules still need evidence
At international level, UNCITRAL states that its Model Law on Electronic Signatures rests on non-discrimination, technological neutrality and functional equivalence. It also sets basic rules of conduct for assessing the duties and liabilities of the signatory, the relying party and trusted third parties in the signature process.
Technology neutrality means the law does not insist on a particular tool. It does not mean every tool produces equally good evidence. When a fee dispute arrives, the consultancy has to show who agreed, to which version of which document, and when. An e-mail chain can show some of that. A completed signing process shows more.
Turning an e-mailed yes into a signed statement of work
The practical answer is not to refuse to start until paper is signed. It is to treat the e-mail as the trigger for a signature, and to say so:
- Reply the same day, thanking the client and attaching the final statement of work, with the fees and scope exactly as proposed.
- Ask for signature by the person with authority, naming their role if you know it.
- Confirm in writing what work, if any, you will start before signature, and on what terms.
- Keep the original e-mail with the signed document, so the full trail is in one place.
What the statement of work should cover is set out in what a consulting statement of work should pin down.
What Achekam's signature certificate records
In Achekam, any document can be sent for electronic signature with signature and initials fields placed on it, signers in order or all at once, an expiry and reminders. The signed PDF and a completion certificate are filed back into Documents. Because the client signs from outside the business, the envelope must be linked to a client or a CRM lead before it is sent.
When everyone has signed, Achekam produces the signed PDF with a completion certificate listing each signer's e-mail, times, IP address and browser, and the document's fingerprint, and files it in the client's "Signed documents" folder.
Be clear about what kind of signature that is. Achekam's e-signatures are simple electronic signatures: the certificate cites section 13 of the ECT Act and says they are not advanced electronic signatures. They suit agreements where the parties choose to sign electronically. They are not the advanced electronic signature section 13(1) demands where a law requires a signature without specifying its type. E-signature certificates by country and signing a mandate electronically look at related situations.
The next time a client replies "go ahead", send the statement of work for signature within the hour, and start only the work your reply says you will.
General guidance only, not advice on your own circumstances. Tax and payroll rules change: check the current position with the authority or your adviser.
