An electronic signature is a form of digital signature that can be used to authenticate the identity of the sender of a message or the signer of a document and possibly to ensure that the original content of the message or document that has been sent is unchanged. E signatures are commonly used in business transactions, legal issues and any other regulated transactions for verification of the authenticity as well as the integrity of the document.
Every Nation has different laws on the validity and legality of electronic signatures, and when executing international transactions it is imperative to understand country-specific laws so that any contract one gets into is validated.
E-Signatures in South Africa
Electronic signatures became legal in South Africa in the year 2000 following the implementation of the Electronic Communications Act 2000. It is a move towards a paperless society and has reduced significantly the cost of paper, and the cost incurred when faxing and the agony of sending faxes.
In terms of legality e-signatures, South Africa operates a mixed legal system, formed through interweaving from a number of backgrounds i.e. civil law inherited from the Dutch, common law inherited from the British and customary law inherited from the indigenous Africans.
Having all these backgrounds, in South Africa a signature (ink signature or e-signature) does not validate a contract; neither does lack one invalidate it however according to section 15 of the Electronic Communications and Transactions Act electronic signature solutions can be a source of evidence in courts of law.
Types of E-Signatures
Standard Electronic signature is the first type which refers to data that is logically associated or attached to other data and is normally intended by the user to serve as a signature. It can be in the form of a drawing made through digital tools or a scan of the signee’s wet-ink signature.
A Standard electronic signature is considered valid if it identifies the signee and shows the person’s approval of the content contained in the agreement if it is suitable for the contract at the time of the signature and if it is time-stamped.
In South Africa E signatures are commonly used when authenticating consumer agreements, human resource documents, commercial agreements between corporate bodies and short term real estate agreements.
An advanced electronic signature happens to be the second type and this is normally verified or licensed by an authority and considered more credible as considered to a standard electronic signature.
For it to be considered valid it should be uniquely linked to the signee, it should be based on face-to-face identification of the signee, executed under the sole control of the signee and protected in such a manner that it is possible to discern any change of the message or data contained in the document. Advanced electronic signatures are commonly used when signing a surety-ship and when signing as a commissioner for oaths.
In conclusion, E-signatures are commonly used in South Africa when signing wills as well as codicils, to render agreements binding for sale or transfer of immovable property when signing bills of exchange, employee intervention agreements, intellectual property licenses, deeds and long term leases that may be exceeding 20 years.
E-signatures in South Africa have shortened the lifecycle of transactions, reduced extraneous costs hence a boost to business.