Are electronic signatures legal in South Africa? Which laws primarily govern electronic signatures?

Electronic signatures are legal in South Africa. They are primarily regulated by the Electronic Communications and Transactions Act (ECTA) No. 25 of 2002 (revised and effective as of 2011) and the accreditation regulations issued under ECTA.

What is an electronic signature in South Africa?

An "electronic signature" refers to data that is attached to, incorporated in, or logically associated with other data, and which the user intends to use as a signature.

What types of electronic signatures are recognized in South Africa, and what are their respective requirements?

South Africa recognizes two types of electronic signatures: standard electronic signatures and advanced electronic signatures.

1.Electronic Signature

An electronic signature must meet the following conditions:

• It is used to identify an individual and indicate the individual’s approval of the information communicated;
• Considering all relevant circumstances at the time of use, the method is as reliable as is appropriate for the purpose of the communicated information.

Electronic signatures can take various forms, including:

• A name typed in electronic format (e.g., in an email);
• Clicking a signature button on a website;
• A handwritten signature (e.g., signed on a tablet);
• A scanned handwritten signature converted into digital format.

Recognized under Section 37 of ECTA, an advanced electronic signature must originate from a process accredited by the Director-General of the Department of Communications, acting as the South African Accreditation Authority (“SAAA”).
Where an advanced electronic signature is required, it must be created using a digital certificate issued by an accredited service provider, which confirms that the electronic signature:

• Is uniquely linked to the user;
• Is capable of identifying the user;
• Is created using a method that can be maintained under the sole control of the user;
• Is linked to the related data or data message in such a way that any subsequent changes to the data or data message can be detected;
• Is based on face-to-face identification of the user.
   

In which situations can electronic signatures be used in South Africa?

In South Africa, electronic signatures can be used in various scenarios, including but not limited to:

• Human Resources Documents: Employment contracts, privacy statements, confidentiality agreements.
• Short-Term Real Estate Documents: Residential and commercial property lease agreements with a duration of less than 20 years.
• Consumer Agreements: New retail account opening documents, order confirmations, purchase quotations, invoices.
• Commercial Agreements Between Corporate Entities: Non-disclosure agreements, sales and distribution agreements, procurement documents, invoices, etc.

In which situations is an advanced electronic signature required in South Africa?

An advanced electronic signature is required in the following situations:

• The parties to an electronic transaction have agreed to use an advanced electronic signature;
• The law requires a person’s signature, and the law does not specify the type of signature (applicable only to data messages);
• The law requires a signature, statement, or document to be notarized, acknowledged, verified, or made under oath (if an electronic signature/data message is chosen);
• Suretyship agreements;
• Copyright assignments and exclusive licenses;
• The law requires a seal on a document, and the law does not specify the method or form for applying the seal electronically.

In which situations is a traditional signature required in South Africa?

A traditional signature is required for the following documents or scenarios:

• Real estate transfer agreements;
• Long-term real estate lease agreements exceeding 20 years;
• Wills;
• Bills of exchange (e.g., cheques);
• Intellectual property licenses, intellectual property assignments, and employee invention agreements.