Every nation has different laws for the validity and legality of electronic signatures. When transacting internationally, it is vital to understand country-specific laws to ensure that, any agreement or contract you make, is valid. Electronic Signature in South Africa are permitted under the Electronic Communications, and Transactions Act (ECTA) endorsed in 2002.
More importantly, the South African law recognizes the EU directive in e-signs. Any organization operating in South Africa can use e-signs as a signing technique, and they are treated equally as wet-ink signatures. That said; there are some restrictions set by the South African law system in regard to these types of signatures.
For instance; the South African electronic signature laws do not imply compulsory signing of documents to make them legally binding. The agreement is formed when two or more parties agree on terms electronically, in writing, or orally. However, an e-sign is a must if you want to present evidence in court.
Let’s get a summary of the points mentioned above:
- Can I use electronic signatures for business in South Africa? – You can sign your contracts without wet-ink signatures in nearly all business-related cases.
- Are electronic signatures admissible in court in South Africa? – An e-sign can act either as partial or full-fledged evidence in a court of law depending on its level of assurance.
- What is the legal model of electronic signatures in South Africa? – South Africa common law adopts the two-tiered legal model and gives e-signatures the same legal status as wet-ink ones.
Electronic signature in South Africa and their common use cases
The ECTA act regulates the types of electronic transactions and communications in South Africa by common law. Generally, there are two levels of assurance with varying requirements. Let’s explore the existing types of e-signatures.
1. Standard Electronic Signatures (1st level of assurance)
According to Electronic Communications and Transactions Act, a standard signature (SES) is ” data incorporated in, logically associated, or attached to other data and, which is intended by the user to serve as a signature.” Standard electronic signatures can be in the form of a drawing made via digital tools or even a scan of the signee’s wet-ink signature.
The electronic signature law recognizes standard electronic signature as valid if it:
- Identifies the signee (or the contract’s sender) and shows his/her approval of the content contained in the agreement
- Is suitable for the document/contract at the time of signature.
- Is time-stamped
Standard electronic signatures are the most broadly used e-signs when it comes to conducting business transactions. Below are some common uses of standard e-signatures in South Africa:
- Consumer agreements (purchase offers, involves, order confirmations, new retail account opening documents, etc.)
- HR documents (non-disclosure agreements, privacy notices, employment contracts, etc.)
- Commercial agreements between corporate bodies (procurement documents, sales & distribution agreements, invoices, non-disclosure agreements, etc.)
- Short-term real estate agreements (lease agreements for commercial and residential real estate lasting not more than 20 years.)
2. Advanced electronic signatures (2nd level of assurance)
An advanced electronic signature (AES) is a standard e-signature verified by a licensed authority. An AES is more credible than SES; however, for it to be considered valid, it should be:
- Uniquely linked to the signee and be in a position to identify him/her
- Based on the face-to-face identification of the signee
- Executed under the sole control of the signee
- Protected in such a manner that it is possible to discern any change of the message or data contained in the document.
Here are the most common uses of advances e-signatures in South Africa:
- The signing of a surety-ship (Specified under the General Amendment Act, 1956)
- Signing as a Commissioner of Oaths (Specified under the Justices of the Peace & Commissioners of Oath Act, 1963)
Cases when documents can’t be executed via e-signatures
According to ECTA, the following documents can’t be electronically signed:
- Wills and codicils
- Agreements for sale or transfer of immovable property (mortgage bonds and sectional titles).
- Bills of exchange
- Employee invention agreements, Intellectual Property licenses, and IP transfers
- Long-term leases for a period exceeding 20 years
In other words, all the above documents should be signed manually with a wet-ink signature.
Foxit eSign aka eSign Genie and electronic signature law in South Africa
Foxit eSign aka eSign Genie is one of the most advanced electronic signature software in the world, which guarantees numerous features to improve the document signing process. Thousands of organizations worldwide have grown their sales and business processes with Foxit eSign aka eSign Genie.
It is good to note, even though e-signatures have been embraced in many countries, laws vary from one country to another; therefore, you should ensure that regulations in South Africa permit you to utilize e-sign technology. Foxit eSign aka eSign Genie meets the requirements of electronic signature laws in 40+ countries including South Africa.
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DISCLAIMER: The information in this Foxit eSign aka eSign Genie blog is for general purposes only and is not meant for companies to use as legal advice. Please confer with your attorney for legal consultation for your location and specific use cases.2