Is an electronic signature legal in South Africa?

In the words of the Electronic Communications and Transactions Act 25 of 2002 (ECTA), "an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form" (section 13(2)). The transactions it does not make valid include a will or codicil and an agreement to sell land or other immovable property.

With Kwalify your customer signs on their phone with a standard electronic signature, and you get a sealed copy.

What does the law say?

• Being electronic doesn’t take away its force. An electronic signature is not without legal force just because it is electronic (subject to section 13(1)) (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).
• No one has to go electronic. The ECTA does not require anyone to use or accept electronic documents or signatures (section 4(2)(a)).

Which transactions does the Act leave 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 ECTA's rules on writing (section 12) and signatures (section 13) do not apply to the Alienation of Land Act or the Bills of Exchange Act, and sections 11 to 16 and 18 to 20 do not apply to the Wills Act (section 4(3) and Schedule 1).

The Act doesn’t say what these transactions need instead. Check with an attorney before signing one of them electronically.

Source: Electronic Communications and Transactions Act 25 of 2002 on Acts Online, sections 1, 4 and 13 and Schedules 1 and 2.

What to keep for every signed document

Where the parties require a signature, section 13(3) looks at whether the method identified the person and showed their approval. Keep a record that shows how each document was signed:

• Proof of who signed, such as a code sent to the signer's own phone.
• The date and time of each step: sent, opened, signed.
• A sealed copy that shows if anything was changed after signing.
• A record that the signer saw the document before signing.

Common questions