Electronic signatures for South African businesses

The Electronic Communications and Transactions Act 25 of 2002 (ECTA) sets out when an e-signature meets a requirement for a signature. What it says depends on who requires the signature.

• What it is. An electronic signature is data attached to or logically linked with other data that the user intends to serve as a signature (section 1).
• Being electronic doesn't take away its force. The Act says "an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form" (section 13(2)).
• When the parties require a signature. Where the parties require an electronic signature but haven't agreed on the type, the requirement is met if the method identifies the person and shows their approval, and was as reliable as was appropriate for the purpose (section 13(3)).
• When they don't. Where the parties don't require an electronic signature, a statement of intent is not without legal force just because it is electronic or isn't evidenced by an electronic signature (section 13(5)).
• When a law requires a signature. Where a law requires a person's signature and doesn't say which type, an electronic document meets that requirement only with an advanced electronic signature (section 13(1)). An advanced electronic signature is one that results from a process accredited by the Accreditation Authority under section 37 (section 1). Kwalify's signature is a standard electronic signature, not an advanced one.

Transactions the ECTA leaves out

The ECTA does not make any of the transactions in Schedule 2 valid (section 4(4) and Schedule 2):

• An agreement for the alienation of immovable property (such as a sale of land), under the Alienation of Land Act 68 of 1981
• An agreement for a lease of immovable property for more than 20 years, under the Alienation of Land Act 68 of 1981
• Executing, keeping and presenting a will or codicil, under the Wills Act 7 of 1953
• Executing a bill of exchange, under the Bills of Exchange Act 34 of 1964

The Act doesn't say what these need instead. Check with an attorney before signing one of them electronically. Kwalify isn't for them.

More in the guide to whether e-signatures are legal in South Africa.