COURT-ADMISSIBLE

Yes

GENERAL BUSINESS USE

Yes

E-SIGNATURE LEGAL MODEL

Tiered

eSignature Legality Summary

eSignatures are legally valid and admissible in the court of law. South Africa follows a hierarchical root of trust model where eSignatures or digital signatures issued by a Certifying Authority are considered legally valid. Specific use cases for eSignatures are indicated in the Electronic Communications and Transactions Act.

In South Africa a traditional signature isn’t necessarily required for a valid contract – contracts are considered valid if legally able individuals reach an agreement (this can be by agreeing verbally, electronically or by physically signing). Section 13(2) of the Electronic Communications and Transactions Act (ECTA) highlights that contracts can’t be refused for simply being electronic. However, these contracts may have to be supported in court with extra evidence. Electronic signature solutions can be used to provide these electronic documents, under section 15 of ECTA.
*The information on this site is “AS IS” and for general information purposes only.

Use Cases for eSignatures 

  • Use cases where an SES is typically appropriate include

 

    • Speedy HR document preparation with preapproved templates, easy update of each employee, new employee onboarding processes as well as 360 degree view of employee files.
    • End user agreements including sales & service terms, new retail account opening documents, invoices, shipment details, user manual, EULAs, policies

Use Cases for Qualified Signatures 

Use cases where an AES is typically appropriate include:

 

  • Purchase, procurement and commercial agreements including invoices, trade and payment terms, certificates, NDAs, sales & distribution agreements, order acknowledgements.
  • Real estate lease agreements for residential and commercial purpose
  • Commercial agreements between corporate entities including NDAs, procurement documents, sales agreements
  • The contract of suretyship (General Amendment Act, 1956)
  • Signing as a Commissioner of Oaths (Justices of the Peace and Commissioners of Oath Act, 1963

Use Cases that are not appropriate for Electronic Signatures

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.

When a signature is required by law, but the law does not specify the type of signature required, it can only be signed with an advanced electronic signature as defined by ECTA, which is, in practice, equivalent to a QES is Europe. South Africa’s advanced electronic signature is required for:

 

  • Handwritten – contracts for transfer or sale of immovable property, including sectional titles and mortgage bonds (excluded from ECTA)
  • Handwritten – deeds and long term leases for a period of more than 20 years, (excluded from ECTA)
  • Handwritten – wills and codicils (excluded from ECTA)
  • Handwritten – bills of exchange (e.g., cheques) (excluded from ECTA)
  • Handwritten – license of intellectual property, IP transfers and employee invention agreements (Patents Act, 1978, the Design Act, 1993, the Trade Marks Act, 1993 and the Copyright Act 1978)

 

List of Local Trust Service Providers

Institute Regulatory Body/CA/DSC Providers Supported by emSigner Website
South African Accreditation Authority Controller of Certification Authorities Yes http://www.saaa.gov.za/
SignFlow CA Yes https://www.signflow.co.za
Thawte CA Yes https://www.thawte.com/
Verisign CA Yes http://www.verisign.com/
Law Trust Party Services (Pty) Ltd (“Lawtrust”) CA Yes http://www.lawtrust.co.za
South African Post Office Ltd (“SapoTrust Centre”) CA Yes https://www.trustcentre.co.za/

 

“Digital Signature” means a transformation of a message using an asymmetric cryptosystem such that a person having the initial message and the signer’s public key can accurately determine
(a) whether the transformation was created using the private key that corresponds to the signer’s public key;
(b) whether the message has been altered since the transformation was made

 

[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements:
(a) it is uniquely linked to the signatory;
(b) it is capable of identifying the signatory;
(c) it is created using means that are under the signatory’s sole control;
(d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

 

[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.

DISCLAIMER: This information is intended to help you understand the legal framework of electronic signatures. However, eMudhra cannot provide legal advice. The law of electronic signatures is constantly evolving. This guide is not intended as a legal advice and should not serve as a substitute for professional legal advice. You should consult an attorney regarding any specific legal concerns.
eMudhra, and all associates including agents, officers, employees or affiliates, are not liable for any direct, indirect, incidental, special, exemplary or consequential damages.

ABOUT THE GUIDE

The eSignature Legality Guide is the result of legal research into the laws and practices regarding eSignature on a country-by-country basis. Each country-level analysis was conducted by local law firms located in that country, in that country’s local language. This legal analysis was then supplemented with complementary research on eSignature and digital signature technology standards conducted by independent technology experts. Together, this information is provided as a public resource to understand eSignature legality, and clarify some of the common misconceptions about international eSignature legality.

COURT-ADMISSIBLE

A basic measure of eSignature legality in a country is whether courts will admit eSignatures as evidence in court. In most countries in the world, an eSignature cannot be rejected simply because it is electronic, meaning that it should be admissible, subject to proof. Learn more about how DocuSign helps you prove an eSignature validity in court, below.

GENERAL BUSINESS USE

While there are exceptions for very specific types of transactions, eSignatures, independent of the underlying technology, may be used for the majority of general business transactions in most countries. Issues that may restrict general business use include local technology requirements or other restrictions on special transactions types. Learn more about specific transaction types, below.

E-SIGNATURE LEGAL MODEL

‘Tiered’ countries recognize Qualified Electronic Signature (QES, or the locally named equivalent) as a distinct type of eSignature. In these countries, a QES has special legal status in the form of presumed authenticity, and may be legally required for a few, specific transaction types. In spite of this, a non-QES eSignature can still be submitted as evidence in court even in Tiered countries, so long as the party presenting it has sufficient evidence to prove that it is valid. Countries imposing QES standards often struggle to promote electronic business transactions, especially across country borders. ‘Open’ countries have no such technology requirements or eSignature types that receive special legal status. Learn more about eSignature legality at https://www.emsigner.com/

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