Electronic Signatures in South Africa

The Legality of Electronic Signatures is established in the Electronic Communications and Transactions Act of 2002, with amendments being made in 2011.

Section 1 - Definition of Electronic Signature & Advanced Electronic Signature

An 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”. An advance electronic signature is defined as “an electronic signature which results from a process which has been accredited by the Authority as provided for in section 37”.

Section 11 - Legal recognition of data messages

This section provides that “information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message”, therefore providing authorisation to draft, store and access information in electronic format.

Section 12 – Writing

Section 12 addresses the requirement in most corporate agreements, which relates to a document and its amendments to be in writing. This section provides that the “requirement in law that a document or information must be in writing is met if the document or information is

(a)in the form of a data message; and

(b)accessible in a manner usable for subsequent reference.”

Section 13- Signatures

Section 13 is the most important section for the purpose of this document as it specifically deals with electronic signatures. The section provides that:

1. Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used”.
2.  …an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form”.
3. Where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if:
   1. a method is used to identify the person and to indicate the person’s approval of the information communicated; and
   2. 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”.
4. Where an advanced electronic signature has been used, such signature is regarded as being a valid electronic signature and to have been applied properly, unless the contrary is proved”.
5. Where an electronic signature is not required by the parties to an electronic transaction, an expression of intent or other statement is not without legal force and effect merely on the grounds that -
   1. it is in the form of a data message; or
   2. it is not evidenced by an electronic signature but is evidenced by other means from which such person’s intent or other statement can be inferred” .

How SigniFlow conforms to the legislative requirements are set out in point 3.4 and 3.5 of this document.

Types of Electronics Signatures in South Africa 

Electronic Signatures

Provision is made for the legal recognition of electronic signatures 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.

The definition of an electronic signature, as provided above in the ECT Act, is not very clear, however it can be simplified a bit and interpreted as the following - an electronic signature must be able to identify the signatory, the signature must be v erifiable, and it must be visible.

These characteristics all have to be in electronic format for it to qualify as an electronic signature. For an electronic signature to be recognised, the simple intention to sign is required, therefore if the intention for a name at the end of an email is to serve as an electronic signature, as discussed in the Spring Forest Trading v Wilberry judgment, it will be sufficient.

Digital Signatures

A digital signature (although not defined in the ECT Act), is a signature that originates with a digital certificate. A digital certificate is issued to a person, however that person first must be verified as the person who they are claiming to be. A digital signature requires not only a positive act of intending to sign the document but also has verifiable integrity as a result of the issued digital certificate.

A digital certificate is a positive identification of a device/server or entity that operates very similar to how an identity document identifies a specific person. A digital certificate is managed by a Public Key Infrastructure (PKI), which is a combination of hardware, software and procedures implemented in order to manage digital certificates

Advanced Electronic Signatures

An AES is defined in the ECT Act as “an electronic signature which results from a process which has been accredited by the Authority as provided for in section 37”. In short, an AES is a digital certificate-based signature, which utilises mechanisms to ensure security and integrity, as well as to confirm and verify the identity of the signatory. For clarity, AES consists of a positive act, the intent to sign, together with verifiable integrity (a person specific digital certificate based on confirmation of the identity of the applicant) with an added face-to-face verification mechanism, as well as 3-factor authentication (or similar).

As was seen in section 13(4) of the ECT Act, this signature is presumed to be valid, unless proven otherwise, therefore shifting the burden of proof away from the signatory and onto to the person who alleges.

Legislation relating to the production and retention of electronic documents 

How SigniFlow conforms to the legislation relating to the protection, production and retention of electronic documents is discussed in point 3.5 of this document. The following is only the legislative requirements set out in the ECT Act.

Section 14 -Original

1. Where a law requires information to be presented or retained in its original form, that requirement is met by a data message if—
   1. the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms of subsection (2); and
   2. that information is capable of being displayed or produced to the person to whom it is to be presented.
2. For the purposes of subsection 1(a), the integrity must be assessed—
   1. by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display;
   2. in the light of the purpose for which the information was generated; and
   3. having regard to all other relevant circumstances.

Section 15- Admissibility and evidential weight of data messages

1. In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence—
   1. on the mere grounds that it is constituted by a data message; or
   2. 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.
2. Information in the form of a data message must be given due evidential weight. (3) In assessing the evidential weight of a data message, regard must be had to—
   1. the reliability of the manner in which the data message was generated, stored or communicated;
   2. the reliability of the manner in which the integrity of the data message was maintained;
   3. the manner in which its originator was identified; and (d) any other relevant factor.
3. A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.

Section 16- Retention

1. Where a law requires information to be retained, that requirement is met by retaining such information in the form of a data message, if—
   1. the information contained in the data message is accessible so as to be usable for subsequent reference;
   2. the data message is in the format in which it was generated, sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and
   3. the origin and destination of that data message and the date and time it was sent or received can be determined.
2. The obligation to retain information as contemplated in subsection (1) does not extend to any information the sole purpose of which is to enable the message to be sent or received.

Section 17 - Production of document or information

1. Subject to section 28, where a law requires a person to produce a document or information, that requirement is met if the person produces, by means of a data message, an electronic form of that document or information, and if—
   1. considering all the relevant circumstances at the time that the data message was sent, the method of generating the electronic form of that document provided a reliable means of assuring the maintenance of the integrity of the information contained in that document; and
   2. at the time the data message was sent, it was reasonable to expect that the information contained therein would be readily accessible so as to be usable for subsequent reference.
2. For the purposes of subsection (1), the integrity of the information contained in a document is maintained if the information has remained complete and unaltered, except for—
   1. the addition of any endorsement; or
   2. any immaterial change, which arises in the normal course of communication, storage, or display.

Documents that can or cannot be signed electronically 

Where the use of Electronic Signatures are concerned there are three types of documents, those that are not allowed to be signed using any electronic signature, those that can be signed electronically and the documents that require an Advanced Electronic Signature to be valid.

Documents that are, by law, not allowed to be signed electronically includes:

• Sales Agreements for land or buildings
• Wills
• 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

Document that can be signed using an electronic signature:

• Service, sales, or lease agreements (except alienation of land)
• Non-exclusive licencing agreements
• Contracts of employment
• Credit agreements (subject to compliance with certain provisions of National Credit Act)
• Company Administration Documents (resolutions, share certificates etc.)
• FAIS mandates (mandates to intermediaries)
• VAT invoices
• Insurance Documentation
• Cessions
• Debit orders (depending on agreement with PASA)
• Declarations or waivers, except if subject to other Laws
• Emails and letters
• Documents that require an Advanced Electronic Signature to be valid
• Documents containing suretyships
• Assignment or exclusive licensing agreement
• Documents used for pension fund administration
• Credit Agreements (without additional requirements for Electronic Signatures)
• Where there is a legal requirement for the document, signature, or statement to be notarised, acknowledged, verified, or made under oath
• Any document where a signature is required, by law, for the transaction to be valid
• Certification of documents as true copies of the original document
• Notarisation of documents required by law

SigniFlow Advanced eSignature document workflow software further complies with all regulations in South African Law to replace wet-ink signatures with electronic signatures, enabling customers in South Africa to digitise business processes with total confidence.

Use Cases for Electronic Signatures

Examples of situations where an SES is usually suitable are:

• Draft end-user agreements such as sales and service terms, opening documents for new retail accounts, invoices, shipment details, user manuals, EULAs and policies.
• Quick HR document creation using pre-approved templates, with the ability to easily update employee information, effective onboarding process for new employees and a comprehensive view of employee files.

Use Cases for Qualified Signatures

Some instances where an AES is typically suitable consist of the following:

• Commercial agreements between corporate entities, including NDAs, procurement documents, and sales agreements.
• Purchase, procurement, and commercial agreements, such as invoices, trade and payment terms, certificates, NDAs, sales and distribution agreements, and order acknowledgements.
• Real estate leasing contracts for both residential and commercial purposes.
• The contract of suretyship, as per the General Amendment Act of 1956.
• Signing as a Commissioner of Oaths per the Justices of the Peace and Commissioners of Oath Act of 1963.

In South Africa, an advanced electronic signature is necessary for the following:

• Handwritten contracts for the sale or transfer of immovable property, including sectional titles and mortgage bonds (excluding those governed by ECTA)
• Handwritten deeds and long-term leases lasting more than 20 years (excluding those governed by ECTA)
• Handwritten wills and codicils (excluding those governed by ECTA)
• Handwritten bills of exchange, such as cheques (excluding those governed by ECTA)
• Handwritten license of intellectual property, IP transfers, and employee invention agreements, as per the Patents Act of 1978, the Design Act of 1993, the Trade Marks Act of 1993, and the Copyright Act of 1978.

Disclaimer:
The information available on this website is intended for general informational purposes only and should not be considered as legal advice provided by SigniFlow or any individual author. It is not a substitute for legal counsel on any subject matter. Therefore, no reader of this website should act or refrain from acting based on any information obtained from this website alone. It is essential to seek appropriate legal or professional advice on the specific facts and circumstances of your case before making any decisions.