When will an electronic signature not be accepted?
Article was written by Precious Mmako, Candidate Attorney, checked by Jordan Dias, Associate, and released by Pierre van der Merwe, Partner at Schindlers Attorneys
18 June 2021
A signature refers to a stylistic representation of a person’s name, surname and/or initials that is applied to a document, such as a contract. An electronic signature is defined in section 1 of the Electronic Communications and Transactions Act No. 25 of 2002 (“the Act”) 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 electronic signature, being a piece of data attached to an electronically transmitted document, must be able to serve as verification of the sender’s identity and his/her intent to sign the document.
Electronic signatures vs Advanced electronic signatures
According to the Act, there are two categories of electronic signatures. The first is a standard electronic signature (“SES”) which includes any digital or scanned signatures and are often referred to as non-secure signatures. The Act provides that the electronic signature will be deemed to be valid where:
- a method is used to identify the sender and to indicate the sender’s approval of the information communicated; and
- having regard to all the relevant circumstances at the time, the method was reliable and appropriate for the purposes for which the communication was intended.
According to the Act, there are some instances where an electronic signature other than a SES may be required. This may include instances where the law requires that an agreement or document must be in writing and signed. In terms of section 12, such agreement or document will be regarded to be in writing if it is:
(a) in the form of a data message; and
(b) accessible in a manner usable for subsequent reference.
According to section 13 (1) of the Act, 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 AES is used.
An AES is defined as a signature which results from a process which has been accredited by the “Accreditation Authority” as provided for in section 37 of the Act. The Accreditation Authority is operated by the Department of Communications.
There are some documents that are excluded entirely by the Act. Section 4 (4) of the Act excludes the following from being concluded electronically, whether or not an AES is used by the parties to sign:
- an agreement for the alienation of immovable property in terms of the Alienation of Land Act 68 of 1981;
- an agreement for the long-term lease of immovable property;
- the execution, retention and presentation of a will or codicil as defined in the Wills Act 7 of 1953; and
- the execution of a bill of exchange as defined in the Bills of Exchange Act 34 of 1964.
The Act facilitates and regulates electronic commerce and communications. A transaction that is concluded electronically falls under the Act, as it contains one or more data messages. Any transaction excluded by section 4(4) read in conjunction with schedule 2 of the Act should be signed by hand with a physical wet signature. Electronic signatures serve the same purpose as hand-written signatures in certain circumstances. SES can be used to finalise an agreement between parties, or to authenticate a document.
An AES will render the signature valid in instances where a signature is required by law and the law does not explicitly provide the type of signature required. SES’s are valid and acceptable in instances where an AES is not required by law.