Electronic signatures in South Africa

There’s an ongoing discussion in the commercial world, especially in property law, around the types of documentation that can be signed electronically.

December 11, 2020

The Electronic Communications and Transaction Act 2002 (ECTA) is the Act that allows for electronic signatures to take place within a commercial or non-commercial setting, and it also regulates e-government services.

The ECTA regulates and prescribes that certain documents can be signed electronically. Such electronic signatures constitute representation as if hand signed on paper. The Act also states that documents containing electronic signatures be “original” documents under certain conditions.

When entering into any agreement, an acceptable form of an electronic signature can be created by:

  • Using a stylus device or your finger to draw your signature.
  • Uploading an image of your signature and overlaying it on the document
  • Using your cursor to draw your signature

These examples can be viewed as a standard electronic signature and will be accepted unless the document or legislation specifically requests an Advanced Electronic Signature (AES). The ECTA defines an AES as an electronic signature that has been accredited by the Authority as provided for by the Department of Communication.

If any amendments take place to an agreement, initialling and signatures can be done electronically on the proviso that the correct electronic signatures were used initially.

The types of documents that cannot be signed electronically are:

  • An agreement of sale for immovable property.
  • Long-term leases of land exceeding 20 years.
  • A signature on a will.
  • Bills of exchange.

The ECTA also covers cybercrime and unauthorised access to data such as interception of data, computer-related extortion, fraud, and forgery. Should anyone be found guilty, they can face a fine or imprisonment.

A key takeaway is that, if used correctly, the ECTA paves a way for organisations to be able to continue to operate in uncertain times such as these.

Written by Wessel de Kock

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