eSignature Legality Guide

None.

ECTA differentiates between:

• An “Electronic signature” (ES), which refers to data attached to, incorporated in, or logically linked with other data and intended by the user as a signature (such as a digital or scanned signature). Examples include a typed name at the end of an email, clicking an “I accept” box on a website, or signing on a tablet with a stylus or finger; and
• An “Advanced electronic signature” (AES), a specific type of ES created through a process accredited by the South African Accreditation Authority (SAAA) to ensure the signature’s authenticity. The SAAA grants accreditation only if the AES produced by the authentication service or product:
  1. can identify the person signing;
  2. is based on in-person identification of the signatory;
  3. is uniquely linked to the signatory;
  4. is created and kept under the sole control of the signatory; and
  5. is attached to the electronic record so that any changes to the signed record can be detected.

In South Africa, most contracts do not require any special formalities to be legally binding, and written or signed documents are not always necessary. As a result, parties to a contract must determine the applicable requirements, including whether electronic signatures are acceptable.

Electronic signatures (ES) are generally permitted for most transactions and documents, provided that:

• A method is used to identify the sender and show their approval of the information sent, or
• The method is reliable and suitable for the intended purpose, considering all relevant circumstances at the time.

However, ES cannot be used in the following situations:

• If the law specifically prohibits their use for a certain transaction;
• If a particular law requires the use of an AES; or
• If the parties to the transaction agree to use a different method of signing.

If a signature is legally required but the law does not specify the type, the document may only be signed electronically if an AES is used. This applies, for example, to:

• Suretyship agreements
• Assignments of copyright and exclusive licenses
• Documents requiring notarization
• Certified documents that exist in paper or other physical form
• Documents where a seal is required by law

Certain contracts cannot be signed using any type of electronic signature, including those for the sale of immovable property, long-term leases of immovable property, the execution, retention, and presentation of wills or codicils, and the execution of bills of exchange.

To help ensure that an ES or AES is valid and appropriate, consider the following best practices:

• Use an organization-specific domain name that clearly identifies the signatory’s company;
• Have the signatory send the signed document directly to the recipient, reducing the involvement of intermediaries;
• Independently verify the signatory’s identity and their acceptance of the contract terms;
• Strictly follow any signature requirements specified in the contract; and
• Use a service provider to confirm the signatory’s identity and the date and time of signing.

There are no specific penalties under ECTA for non-compliance, but a contract may be declared void and unenforceable by a court if it does not comply with the relevant laws for the transaction—such as using an electronic signature where it is not allowed, or using an ES when an AES is required.

Court decisions are made on a case-by-case basis, taking into account the parties’ intentions and the circumstances, and may either excuse non-compliance or declare the agreement invalid and unenforceable.

Below are some key cases where South African courts have considered the use of electronic signatures:

• Spring Forest Trading v. Wilberry (725/13) [2014] ZASCA 178;
• Global & Local Investments Advisors (Pty) Ltd Appellant v. Nickolaus Ludick Fouché (71/2019) [2019] ZASCA 08;
• First Rand Bank t/a Wesbank v. Molamugae (24558/2016) [2018] ZAGPPHC 762 (26 February 2018);
• Aarifah Security Services CC v Jakoita Properties (Pty) Ltd and Others (12994/18) [2020] ZAGPJHC 222; [2020] 4 All SA 730 (GJ); 2021 (5) SA 207 (GJ) (21 September 2020)
• Borchards and Another v Duxbury and Others (1522/2020) [2020] ZAECPEHC 37.
• Massbuild Pty Ltd t/a Builders Express, Builders Warehouse and Builders Trade Depot v Tikon Construction CC and another [2020] JOL 48548 (GJ) (unreported case number 6986/2017) (14 September 2020