Does an electronic signature on a document have the same legal validity as a handwritten signature?

Budget Speech summary
March 7, 2018
Het ’n elektroniese handtekening op ’n dokument dieselfde regsgeldigheid as ’n handgeskrewe handtekening?
March 7, 2018

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:

  • Identify the party signing the document;
  • Involve an act of acceptance in order to commit the party signing same;
  • Be a mark which can only be made by the party signing the document;
  • Be visible, understandable and fair; and
  • Be verifiable by an impartial test.

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 signatureis 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:

  1. Data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature. Such an electronic signature can be used to sign documents in situations when the law does not require an advanced electronic signature. These signatures are also sufficient where a signature is required by the parties to an electronic transaction, which does not specify the type of electronic signature to be used. However, the validity of the signature would then depend upon whether a method is used to identify the person in question and to indicate the person’s approval of the information communicated and having regard to all the relevant circumstances at the time, the method used was reliable and appropriate for the purposes for which the communication was intended.
  2. The second type of electronic signature is known as an advanced electronic signature (“AES”). This is like a normal electronic signature, but it is more secure as it can only be issued by an authentication services provider, whose products and services have been accredited by the South African Accreditation Authority. An AES signature applies to electronic documents only and is mandatory for documents that are required by law to be in writing and signed.

It is, however, important to note that in terms of the Act the following cannot be concluded electronically and must be in writing:

  • An agreement for the sale of immovable property;
  • A long-term agreement for immovable property, such as a lease, which
  • is in excess of 20 years;
  • A bill of exchange, such as a cheque; and
  • Wills or codicils.

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.

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