In South Africa, the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) currently governs the use, recognition and enforceability of electronic communications and electronic signatures. This includes the use of any advanced electronic signatures in South Africa.
Section 13(3) of ECTA indicates that an ordinary electronic signature (such as scanned handwritten signatures and tick box acknowledgements) is legally valid if:
i. The parties agree to use that form of signature.
ii. The parties have not agreed on the type of electronic signature to be used, and the method identifies the signer and indicates approval of the information. Having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.
Furthermore, section 13(4) of ECTA indicates that where an advanced electronic signature has been used, such a signature is regarded as being a valid electronic signature and to have been applied properly, unless the contrary is proved.
With the above in mind, it is still important to consider the nature and type of legal document being signed, to have comfort in using an electronic signature. When signing commercial contracts, the use of electronic signatures via a signing platform is usually acceptable and does not impact the validity of the contract, provided the requirements of section 13(3) of ECTA are met. This includes, for example, employment contracts, lease agreements that are not long-term in nature, non-disclosure agreements, sale of shares agreements and many others.
Yet, certain types of contracts or legal documents cannot be signed electronically and must be signed in person. A good example is your will, as the requirements for the validity of such a legal document still require the original “ink to paper” approach in South Africa. Another example is the signing of a long-term lease agreement or an antenuptial contract that must be submitted for approval at the relevant Deed’s Office, and where the original is required.
Beyond the relevance of bespoke laws specifying requirements for the validity of certain legal documents, one must also consider the guidelines of regulatory authorities. For example, documents submitted to the Companies and Intellectual Property Commission (“CIPC”) can generally be signed electronically and submitted as the CIPC permits. On the other side, certain documents that must be submitted to the Master of the High Court still require the orthodox “pen to paper” for those documents to be accepted by the Master.
As a rule, our courts have confirmed that electronic signatures, whether via a platform or email, are enforceable, provided the statutory requirements of the ECTA and the parties’ contractual intention are satisfied. Digital signing platforms that comply with section 13(3) of ECTA are therefore fully valid for signing documents. Most platforms also include features such as user identification, authentication, and an audit trail, which enhances the evidentiary value of the signature compared with a basic electronic signature, such as a scanned image of a handwritten signature added to a document and emailed.
Despite the convenience of digital signing platforms, it remains essential to understand when an ordinary electronic signature is sufficient, when an advanced electronic signature is required, and when the law still prescribes traditional execution formalities. Failing to do so may result in an invalid document or one that is rejected by a regulatory authority. If in doubt, it is advisable to consult with your lawyer to ensure that the document is signed correctly.
Disclaimer: This article is the personal opinion/view of the author(s) and does not necessarily present the views of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever, and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s).
