Scope of Electronic Signatures in South Africa
South Africa operates under the mixed legal system that incorporates principles of a Civil Law System inherited from Dutch, a Common Law System inherited from English and a Customary Law System inherited from African countries.
Electronic signatures in South Africa are regulated by Common Law and the legalities of electronic signatures in South Africa are defined in the South African Electronic Communication Transactions Act 25 of 2002.
Overview of the South Africa Electronic Communication Transactions Act
The South African government started enforcing the Electronic Communication Transactions Act (ECTA) in 2002 to define, develop, regulate and govern a legal structure for e-commerce in South Africa.
There are 14 chapters in ECTA that provide guidelines for electronic communication in any form – email, SMS and other internet-based platforms, as well as electronic transactions and electronic documents. Chapter 3 (Facilitating Electronic Transactions) and Chapter 6 (Authentication Service Providers) include specific guidelines for electronic signatures.
Electronic Signature Definition as per South African ECTA
ECTA defines electronic signature as an electronic data that is logically attached or associated with other electronic data such as an electronic transaction or electronic document facilitating the provision for a signatory to sign.
As per ECTA, there should be a proof of the relationship between the electronic signature and electronic document, and there should be proof that the electronic signature belongs to a signatory.
Electronic Signature Definition as per South African Common Law
As per South African common law, an electronic signature should meet the following requirements to be valid:
The electronic signature should be in the form of a name, and it should be on the electronic document to serve as binding evidence.
The signatories should themselves be able to e-sign using an electronic signature platform.
The signatory should consent to using an electronic signature on the attached electronic document.
Types of Electronic Signatures as per South African ECTA
Standard electronic signatures and advanced electronic signatures are the two types of electronic signatures that ECTA of South Africa recognises.
Standard Electronic Signatures: Scanned handwritten signatures are considered standard electronic signatures as per ECTA. The non-secure electronic signatures will be deemed to valid when a secured and authenticated communication was used, reliability of communication can be ensured, and timestamps of communication can be submitted.
Advanced Electronic Signatures: As per ECTA, advanced electronic signatures can facilitate proof of electronic signature and electronic communication ensuring the evidentiary value of an agreement for a transaction.
Use of RSign, RMail, and RForms electronic signature services in their standard service implementations meet the standards for an Advanced Electronic Signatures in South Africa. RSign, RMail, and RForms e-signatures return a robust forensic audit trail and use cryptography to logically associate and digitally seal the original document sent for e-signature with Internet forensics associated with each signer, the signed copy, and uniform timestamps of each step of the process. The RSign, RMail, and RForms cryptographic seals render the e-sign record with its certified electronic signature certificate and/or Registered Receipt™ email record, an authenticable proof record.
Exceptions to the use of Electronic Signatures as per ECTA
ECTA excludes the following documents for electronic signatures and electronic communication: Wills, sale agreements of immovable property, lease agreements for land exceeding 20 years, and bills of exchange.