ELECTRONIC SIGNATURES IN TERMS OF SOUTH AFRICAN LAW

We live in a changing world; technology have transformed the traditional methods of conducting businesses. The outbreak of COVID-19 left many businesses with no choice but to rapidly deviate from the usual method of operation and adopt using data messaging and electronic forms of communication.

The most basic method of authenticating documents or giving consent to information contained in a document is by attaching a signature on that document, advanced technology now permit composition of electronic signatures, which is a big improvement on the traditional signature of putting pen-ink to paper.

The Electronic Communications and Transactions Act, provide laws which address the use of electronic communications and elaborates on the use of electronic signatures.

How can I execute signature to documents in terms of South African Law?

In South African Law, there are three ways to sign documents, namely:

  1. The traditional method where people physically sign in pen on an actual document;
  2. Electronic signatures, and
  3. Advanced Electronic Signatures (AES)

The Electronic Communications and Transactions Act, 2002 [No. 25 of 2002]

In terms of Section 13 of the Electronics Communications and Transactions Act (ECTA), electronic signature means: “data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature”.

 Section 13(3) provides that “ where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if:

(a) a method is used to identify the person and to indicate the person’s approval of the information communicated, and

(b) having regard to all the relevant circumstances at the time the method was used, the method was reliable and was appropriate for the purposes for which the information was communicated”.

In terms of Section 1 of the ECTA, data message is defined as: “data generated, sent, received or sorted by electronic means and includes:

(a) voice, where the voice is used in an automated transaction and

(b) a stored record.

How can I ensure that an electronic signature is reliable and appropriate?

The following steps can be taken to ensure that the method of an electronic signature used is reliable and appropriate:

  1. Use a dedicated organisation domain name that clearly identifies the company to which the signatory belongs;
  2. Have the signatory send the signed document directly to the recipient, minimalizing the use of intermediaries;
  3. Take steps to independently verify the identity of the signatory and his or her acceptance of the terms of the document;
  4. Ensure strict compliance with signature formalities that may be specified in a relevant agreement; and
  5. Use a service provider to authenticate the identity of the signatory as well as the time and date of signature.

Advanced electronic signature and criteria for accreditation

Section 13(1) of the ECTA provides that “where a signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used.

Advanced electronic signatures means “an electronic signature which is which results from a process which has been accreditation by the Authority”. It is evident from the above that more is required in terms of an advanced electronic signature.

Advanced electronic signatures are a specialized type of electronic signature that have been accredited or passed a test. To “pass the test”, the South African Accreditation Authority (SAAA) must accredit authentication products and services in support of the advanced electronic signature. The purpose of requiring accreditation is to guarantee the authenticity of the signature.

As stipulated in Section 38(1) of the ECTA, “the Accreditation Authority may not accredit authentication products or services unless the Accreditation Authority is satisfied that an electronic signature to which such authentication products or services relate:

  1. is uniquely linked to the user;
  2. is capable of identifying that user;
  3. is created using a means that can be maintained under the sole control of that user;
  4. will be linked to the data or data messages to which they relate in such a manner that any subsequent change of the data or data messages is detectable; and
  5. is based on face-to-face identification of the user.

Are electronic documents (scanned versions of hardcopies, soft copies, digital images) regarded as being in original form?

Electronic representations of documents will be regarded as being in their original form if the following is met:

  1. the integrity of the information from the time when it was first generated to its final form as a data message or otherwise has passed assessment; and
  2. that information is capable of being displayed or produced to the person to whom it is to be presented.

Passed Assessment

In terms Section 14(2) of the ECTA, the integrity of the information would be regarded as having passed assessment if the following requirements have been met:-

  1. If the information has remained complete and unaltered since its first generation except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display;
  2. Consideration having been taken regarding the purpose for which the information was generated and;
  3. Having regard to all other relevant circumstances.

Evidential weight of electronic signatures pertaining to data messages

In assessing the evidential weight of the data message in legal proceedings, the following will be considered in terms of Section 15(3) of the ECTA:-

  1. the reliability of the manner in which the data message was generated, stored or communicated,
  2.  the reliability of the manner in which the integrity of the data message was maintained,
  3.  the manner in which its originator was identified; and
  4.  any other relevant factor.

CONCLUSION

The development of technology and advancement of the digital age has resulted in the adoption of digital methods to complete even the most basic tasks including how we communicate. Nowadays people engage with each other through data messages and many companies and institutions communicate with their clientele using digital platforms such as websites and electronic mail. Understanding the relevant procedures and requirements will ensure that not only do your documents comply with the requirements and are also legally enforceable.

Add your Comment