The use of electronic signatures and certificate-based digital signatures is common in South Africaa. However, as a general rule, no special formalities are required for the conclusion of an enforceable contract and most contracts are not required to be in written form or signed. Thus, the contracting parties are responsible for determining the formalities that will be used, including whether a contract will be executed with electronic signatures.
Section 13 of the Electronic Communications and Transactions Act 25 of 2002, as amended (ECTA) regulates the use of electronic signatures in South Africa. Additionally, the Accreditation Regulations issued under ECTA regulate the accreditation of authentication products and services in support of advanced electronic signatures.
ECTA distinguishes between the following types of signatures:
For all situations where a document is signed by an electronic signature, and where law does not prohibit the document from being signed electronically, the electronic signature will have the same presumption of enforceability as a handwritten signature.
Where an electronic signature is required by the parties to an electronic transaction and the parties have not specified that an advanced electronic signature is to be used, such requirement is met in relation to a data message if:
It is normal practice for persons to use electronic signatures in their standard form, unless the law specifically prohibits the use of electronic signatures generally or the law prescribes that an advanced electronic signature is required for the execution of an agreement.
An advanced electronic signature is required in the following circumstances:
Accordingly, there are certain documents that should only be signed by an advanced electronic signature when contracting electronically (e.g. suretyship agreements; franchise agreements; and documents to be signed by a commissioner of oaths).
In cases where an advanced electronic signature is required the electronic signature shall be created with a digital certificate issued by an accredited service provider who has confirmed in relation to its service that the electronic signature:
An accredited authentication provider is required for the creation of an advanced electronic signature. Accredited service providers are those that have been designated as a preferred authentication service provider or whose products and services in support of advanced electronic signatures have been accredited by the SAAA. A list of these accredited authentication services providers can be found on the public accredited authentication and certification products and services page.
In general, there are no South African laws that prohibit the storage and processing of electronic signature data outside of South Africa. However, the Protection of Personal Information Act 4 of 2013 (POPIA), should be considered when processing, transferring, and storing personal information outside of South Africa.
Transacting with public sector entities
Section 27 and 28 of ECTA allows a public body to accept electronic documents, licenses and permits and payments via electronic form or means. However, this must be specifically permitted by law and the public body is entitled to specify the type of electronic signature required and the manner and format of the electronic signature to be attached or incorporated in the data message.
Use cases that generally require a traditional signature
Any agreement may be signed with electronic signatures save for the following exclusions:
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