This blog is co-authored by Brigitte Eloff and William Hayne, candidate attorneys.

In April 2025, the Pretoria High Court admitted evidence regarding the transmission, interception and admissibility of data messages as evidence that suretyship agreements were properly signed.

The bank, as lender, sought a monetary judgment against the first and second respondents, as sureties. The suretyships were executed during a video call between the parties, amid the Covid 19 pandemic. During this meeting, one of the sureties showed and identified the suretyships, which had been sent by the bank prior to the meeting, on camera. Both sureties then manually signed the suretyships on camera, whereafter the sureties emailed the scanned, signed copies to the bank and retained the originals.

The bank demanded payment from the sureties in 2023, after default by the borrower. The sureties alleged that the signatures constituted ‘electronic signatures’ under sections 37 and 38 of the Electronic Communications Transactions Act 25 of 2002 (ECTA), and that the agreements were therefore unenforceable, according to section 6 of the General Law Amendment Act (GLAA), which requires a valid suretyship to be executed in writing.

The bank, not in possession of the original agreements, provided the court with the electronic copies, as well as the video recording of the meeting as evidence that the agreements were signed in wet ink and hence not electronically signed.

The court had to consider the nature and method of signing, and also the admissibility of the video footage under ECTA.

The signatures.

The court found that there can be no doubt that the suretyships were signed in manuscript (i.e wet ink), as this is clearly evidenced by the video footage. The court consulted the definition of ‘electronic signatures’ under ECTA and found that the relevant signatures did not qualify as electronic representations of information or advanced electronic signatures.

The scanned copies of the agreements.

While the signatures themselves did not constitute data messages under ECTA, the email whereby the scanned copies of the signed agreements were sent, did.

To determine the admissibility of these emails as proof that the suretyships were validly concluded, the court relied on section 15(1) of ECTA, which stipulates that “in any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence, on the mere ground that it is constituted by a data message, or 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”.

It was held that, due to the sureties’ failure to provide the bank with the original suretyships, the digitally transmitted copies became admissible evidence.

The video recording.

The court found that the video footage constitutes a data message as per ECTA.  Consequently, the court needed to determine whether this footage was admissible evidence.

The court considered section 15 of ECTA, as well as two relevant precedents. In Intercape Ferreira Mainliner (Pty) Ltd and Others vs Minister of Home Affairs and Others, it was confirmed that video evidence is permissible in application proceedings and that it is equal to all other forms of documentary evidence. In Waste Products Utilisation (Pty) Ltd v Wilkes and Another, it was ruled that relevance is the ultimate test for admissibility and that the court has the discretion to admit evidence, which was obtained in violation of another person’s privacy, should it be in the interest of fairness and public policy. In this case, the court allowed an unlawful video recording into evidence, as it served as evidence against sureties who were attempting to deceive the court.

The test for the admissibility of a video recording before the court in this instance was therefore twofold – firstly, whether the recording was unlawful. The court referred to section 4(1) of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (the Act), which stipulates that it is permissible for a party to intercept communications to which they are a party, unless it is intercepted for purposes of committing an offence. Secondly, the relevance of the recording needed to be evaluated. The court found that the video recording was of particular relevance, as it demonstrated that the meeting was legitimate and that the signatures were in wet ink.

Based on this evidence, the court found that the suretyships were signed in wet ink, that the sureties had acted in a deceitful manner, and that its reliance on GLAA and ECTA was misplaced.

Firstrand Bank Limited v Ayob and Another (045157/2023) [2025] ZAGPPHC 350 (15 April 2025)