Electronic signatures in South Africa are legally recognized in South African Law as provided for by the Electronic Communications and Transactions Act (Act no. 25 of 2002), as amended in 2011 and in effect (ECTA). “Electronic Signature” means data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.
Depending on the type of document, standard electronic signatures, digital signatures and advanced electronic signatures (AES) are admissible in court.
Legal Recognition of E-signature
The Electric Communications and Transactions Act (ECTA) 25 of 2002 intends to provide for the facilitation and regulation of electronic communications and transactions.
The Legality of Electronic Signatures is established in the Electronic Communications and Transactions Act of 2002, with amendments being made in 2011.
Section 1 of ECTA defines an electronic signature as “data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature”. An advance electronic signature is defined as “an electronic signature which results from a process which has been accredited by the South African Accreditation Authority (SAAA) as provided for in Section 37”.
Notable Changes
None.
Types of Permitted Electronic Signatures in South Africa
Electronic Signatures
Provision is made for the legal recognition of electronic signatures in the ECTA, and the ECT Act does not prescribe what type of technology must be used. Examples of electronic signatures include:
- • your typed name at the end of your e-mail,
- • a scanned image of your handwritten signature embedded into a Word document and,
- • a so-called digital signature e.g. an “I accept” click box on a website.
Advanced Electronic Signatures (AES)
An AES is defined in the ECT Act as “an electronic signature which results from a process which has been accredited by the SAAA as provided for in section 37”. In short, an AES is a digital certificate-based signature, which utilizes mechanisms to ensure security and integrity, as well as to confirm and verify the identity of the signatory.
Accreditation is only provided where the SAAA is satisfied that the resulting AES produced by the authentication products or services:
- • can identify the signatory;
- • is based on face-to-face identification of the signatory;
- • is linked uniquely to the signatory;
- • is created and maintained under the sole control of the signatory; and
- • will be linked to the electronic record in such a way that any change to the signed electronic record will be detected.
Documents That May or May not be Signed Electronically
There are no special formalities required for the conclusion of an enforceable contract in South Africa, and most contracts are not required to be in written form or to be signed. Parties to a contract are therefore responsible for determining the formalities that apply to a contract, including whether it will be executed with electronic signatures.
There are documents that are not allowed to be signed by using electronic signatures, there are documents that can be signed electronically, and there are documents that require an Advanced Electronic Signature to be valid.
Documents That can be Signed Using Electronic Signature
An Electronic Signature can be used in most transactions when signing documents and contracts electronically and where:
- • A method is used to identify the sender and to indicate the sender’s approval of the information communicated, or
- • The method was reliable and appropriate for the purposes for which the communication was intended, having regard to all relevant circumstances at the time.
An Electronic Signature may not be used where:
- • Its use for a specific transaction is prohibited by law;
- • A specific law requires that an AES be used; or
- • The parties to the particular transaction agree on another method of signature.
Where the signature of a person is required by law, but such law does not specify the type of signature, the applicable document may be executed as an electronic record only if an AES is used. For example, this will apply to the following:
- • Contracts of Suretyship
- • Assignment of Copyright and Exclusive License
- • Document to be Notarized
- • Certified Documents Existing in Paper or Other Physical Form
- • Where a Seal is Required by Law.
Documents that may not be signed using electronic signatures:
- • Sales Agreements for land or buildings
- • Wills or codicils.
- • Any document where another type of signature (i.e. non-electronic) has been agreed to
- • Any document where the law requires another type of signature
- • Long-term lease agreements of 20 years and longer
- • Bill of exchange
Further Guidance
The following steps can be taken to ensure that the ES/AES in use is reliable and appropriate:
- • Use a dedicated organization domain name that clearly identifies the company to which the signatory belongs;
- • Have the signatory send the signed contract directly to the recipient, minimizing the use of intermediaries;
- • Take steps to independently verify the identity of the signatory and his or her acceptance of the terms of the contract;
- • Ensure strict compliance with signature formalities that may be specified in the relevant contract; and
- • Utilize a service provider to authenticate the identity of the signatory as well as the time and date of signature.
Enforcement Penalties for Non-Compliance
There are no laid down penalties for non-compliance with the ECTA per se, but a contract may be rendered void and unenforceable by the court for non-compliance with the relevant law(s) underlying the specific transaction if an electronic signature is used to sign but the particular contract type may not be signed electronically, or where an AES is required but an ES is used.
Courts will exercise their discretion and consider the merits of the case including the intention of the contracting parties and either condone non-compliance with the requirements or find that the agreement is void and unenforceable.
Case Laws
The following cases are examples of where South Africa Courts have addressed the use of electronic signatures.
- • Aarifah Security Services CC v Jakoita Properties (Pty) Ltd and Others (12994/18) [2020] ZAGPJHC 222; [2020] 4 All SA 730 (GJ); 2021 (5) SA 207 (GJ) (21 September 2020)
- • Borchards and Another v Duxbury and Others (1522/2020) [2020] ZAECPEHC 37.
- • Spring Forest Trading v. Wilberry (725/13) [2014] ZASCA 178;
- • Global & Local Investments Advisors (Pty) Ltd Appellant v. Nickolaus Ludick Fouché (71/2019) [2019] ZASCA 08;
Disclaimer
The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so Flowmono cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, consult a legal practitioner in your area.
Reference:
https://www.bartermckellar.law/commercial-law-explained/electronic-signatures-in-south-africa-a-comprehensive-guide
