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