Legal Articles

Many consumers and business owners are asking questions around whether a digital signature will be accepted when signing legal documents during the current lockdown.

South Africa’s Lockdown and Your Digital Signature

COVID-19 in South Africa has created immense uncertainty, unmatched by almost every crisis faced in the history of the country.

As we are currently in the middle of a lockdown, there are many legal grey areas, especially around how to go about concluding contracts when residents are not permitted to leave their homes.

This is because legal contracts require signatures from all parties involved witnesses in order for the agreement to be officialised.

Hand-written signatures serve to prove that the signee accepts all rights and obligations as provided by the contract. This constitutes as solid proof that the party agreed to all terms of the agreement in the event of the dispute.

However, what does the law say about a digital signature on legal contracts? Are digital signatures acceptable on all contacts, or only certain ones?

Advanced Electronic Signature - How to Create an Electronic Signature

According to the Electronic Communications and Transactions Act (ECTA), there are various ways of achieving the same level of authenticity and proof of agreement without having to provide a signature in person.

• Where you draw your signature using a stylus or your finger on devices that allow for this. If you have access to a touchscreen device, you may use your finger or a stylus to create a digital signature directly in the document
• Where you upload an image of your hand-written signature. You may use your phone or camera to create a digital signature. Once the image has been uploaded, it can be converted into a .png file that will then be placed over the signature line in the document
• Use your mouse or cursor to draw your signature. This can be done using your mouse or touch pad to drag your cursor along the signature line to create a unique digital signature
• Type in your signature using your keyboard. Of all the options, this is the easiest method to create a digital signature. After typing in your name, you may select a font that is best suited to your hand-written signature

When a contract or agreement stipulates that parties to the contract must provide a signature as proof of agreement and, no further requirements are stated regarding signatures, any of the above-mentioned methods of signing are acceptable.

Where it is required by law that a document must be signed by a party, an Advanced Electronic Signature (‘AES’) is required. This is defined in ECTA as “an electronic signature which results from a process which has been accredited by the Department of Communication in terms of the ECTA.

However, there are a few exceptions in this case which include:

Agreements for the sale of immovable property

According the Alienation of Land Act, agreements for the sale of land must be written and signed by in ink. However, the ECTA stipulates that the use of a digital signature does not apply to agreements concluded in terms of the Alienation of Land Act.

This means that a buyer is allowed to complete an offer to purchase and sign it in ink before scanning it via email to the seller or real estate agent who will then forward it to the seller. The seller is then required to print the agreement and sign it before scanning it and sending it back to the agent. Standard rules regarding counter offers will apply.

Long-Term Lease of Land

Long-term leases of land in South African law is understood to refer to leases described in the Formalities in Respect of Leases of Land Act, where a long-term lease is a lease of 10 years and longer.

However, as ECTA currently reads, no 20-year lease of land (or longer) can validly be concluded via electronic means.

Signatures on a Will

According to the Wills Act, all Wills must be written, signed and witnessed in hand-writing. The ECTA stipulates that its provisions do not apply to the execution, retention and presentation of a Will.

This means that signing a will by electronic means, even if it is an advanced electronic signature, does not constitute compliance with the Wills Act.

Bills of Exchange

The Bills of Exchange Act deals with bills of exchange, cheques and promissory notes. This Act requires that these negotiable instruments be in writing and signed, and the ECTA specifically stipulates that it does not apply to these instruments.

More about an AES ECTA requires that advanced electronic signatures be issued by a service provider that has been accredited by the Department of Communications.

Lease Agreements

By nature, lease agreements are slightly different in that there is no legislation that requires signatures to be hand-written. Therefore, the following two options are available:

• They can conclude, amend, vary the agreement via electronic communications with an electronic signature according to the 4 bullet points discussed under the above “Advanced Electronic Signature” section
• IF the agreement to be signed and amended specifically states that a handwritten signature is required, then an advanced electronic signature can be used, unless these are specifically excluded. In other words, and advanced electronic signature will serve to effectively replace a handwritten signature requirement, unless the agreement specifically excludes any electronic signature as referred to in ECTA.

Van Deventer & Van Deventer Incorporated – Notaries in Cape Town and Johannesburg

When it comes to providing a digital signature to conclude certain contracts, it’s important to know when an advanced electronic signature will be allowed to effectively replace a handwritten signature.

Our attorneys understand that, despite the current lockdown in South Africa which encourages social distancing, businesses and consumers still need to continue concluding certain contracts.

For assistance with your digital signature and to find out more about when a digital signature is acceptable, please contact our notaries in Johannesburg and Cape Town.