eSignature Legality in South Africa

E-Signature Legality Summary

The governing law in South Africa relating to the use of electronic signatures and records is the South African common law (i.e., the law set down by the old Roman-Dutch authorities, as developed by court decisions) and the ECTA .

Notable Changes in E-Signature Law Since 2020

None.

Types of Permitted Electronic Signature

The ECTA distinguishes between an:

• “Electronic signature” (ES), which means data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature (i.e., any digital or scanned signature). Examples include a name typed in electronic format at the bottom of an email, an “I accept” click box on a website, and a signature effected on a tablet by using an e-pen or finger; and

• “Advanced electronic signature” (AES), which is a type of ES which results from a process that has been accredited by the South African Accreditation Authority (SAAA) in order to guarantee the authenticity of the signature. Accreditation is only provided where the SAAA is satisfied that the resulting AES produced by the authentication products or services:

  • can identify the signatory; 

  • is based on face-to-face identification of the signatory; 

  • is linked in a unique manner to the signatory; 

  • is created and maintained under the sole control of the signatory; and 

  • will be linked to the electronic record in such a way that any change to the signed electronic record will be detected.

Documents That May be Signed Electronically

Generally, no special formalities are required for the conclusion of an enforceable contract in South Africa, and most contracts are not required to be in a written form or to be signed. Therefore, contracting parties are responsible for determining the formalities that apply to a contract, including whether it will be executed with electronic signatures.

An ES can be used in most transactions when signing documents and contracts electronically and where:

• A method is used to identify the sender and to indicate the sender’s approval of the information communicated, or

• The method was reliable and appropriate for the purposes for which the communication was intended, having regard to all relevant circumstances at the time.

An ES may not be used where:

• Its use for a specific transaction is prohibited by law;

• A specific law requires that an AES be used; or

• The parties to the particular transaction agree on another method of signature.

Where the signature of a person is required by law, but such law does not specify the type of signature, the applicable document may be executed as an electronic record only if an AES is used. For example, this will be applicable to the following:

• Contracts of Suretyship

• Assignment of Copyright and Exclusive License

• Document to be Notarized

• Certified Documents Existing in Paper or Other Physical Form

• Where a Seal is Required by Law.

Documents That May Not be Signed Electronically

Particular contracts that may not be signed by way of an electronic signature of either type are contracts for the alienation of immovable property, contracts for the long-term lease of immovable property, the execution, retention and presentation of a will or codicil, and the execution of a bill of exchange.

Further Guidance

The following steps can be taken to ensure that the ES/AES in use is reliable and appropriate:

• Use a dedicated organization domain name that clearly identifies the company to which the signatory belongs;

• Have the signatory send the signed contract directly to the recipient, minimizing the use of intermediaries;

• Take steps to independently verify the identity of the signatory and his or her acceptance of the terms of the contract;

• Ensure strict compliance with signature formalities that may be specified in the relevant contract; and

• Utilize a service provider to authenticate the identity of the signatory as well as the time and date of signature.

Enforcement Penalties for Non-Compliance

There are no statutory penalties for non-compliance with the ECTA per se, but a contract may be rendered void and unenforceable by the court for non-compliance with the relevant law(s) underlying the specific transaction if an electronic signature is used to sign but the particular contract type may not be signed electronically, or where an AES is required but an ES is used. 

Courts will exercise their discretion and consider the merits of the case including the intention of the contracting parties and either condone non-compliance with the requirements or find that the agreement is void and unenforceable.

Seminal Case Law

The following cases are examples of where South African courts have addressed 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

Publicly Accessible Hyperlink(s) to Laws/Regulations Discussed Above 

• The Electronic Communications and Transactions Act (Act no. 36 of 2005)