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.
External Resources
eMudhra, and all associates including agents, officers, employees or affiliates, are not liable for any direct, indirect, incidental, special, exemplary or consequential damages.