The world is constantly moving towards greater levels of digitisation, and organisations are increasingly implementing electronic and automated solutions to reduce paper-based processes. One of these many solutions is electronic signature of documents.
Signature of documents
A signature can be referred to as a mark made by a person with the intent to accept certain facts, statements or an agreement, and able to serve the following purpose:
In terms of South African legislation, a distinction must be made between documents which will only be valid and enforceable if same have been duly signed by the parties, i.e. documents which are required by legislation to be signed and documents which are not required to be signed in terms of legislation.
However, it became custom for parties to sign documents to record their intent and acceptance of terms and conditions, although the mere signature of the document did not make it valid and binding.
Electronic Communications and Transaction Act 25 of 2002 (“the Act”)
In terms of the Act “Data message” means data generated, sent, received or stored by electronic means. “Electronic signature” is defined as data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.
According to the provisions of the Act, two types of electronic signatures are recognised:
It is, however, important to note that in terms of the Act the following cannot be concluded electronically and must be in writing:
In light of the abovementioned, a document which is signed with an electronic signature will be accepted as sufficient proof that the signatory agreed to the terms and conditions embodied in the document. Essentially, an online electronic signature in a commercial transaction is the equivalent of a handwritten signature. It is however important to stress that in the cases where a signature is required by law and such law does not specify the type of signature to be used, only an AES will be sufficient.