Electronic contracts are concluded through data messages which are defined in the Electronic Communications and Transactions Act (“ECTA”) as data generated, sent, received or stored by electronic means.

The ECTA recognises two types of electronic signatures. The first type is data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature. Such an electronic signature can be used to sign documents such as agreements and letters where the law does not require an advanced electronic signature.

These signatures are also sufficient where a signature is required by the parties to an electronic transaction which does not specify the type of electronic signature to be used. However the validity of the signature would then depend upon whether a method is used to identify the person in question and to indicate the person’s approval of the information communicated; and having regard to all the relevant circumstances at the time, the method used was reliable and appropriate for the purposes for which the communication was intended.

The second type of electronic signature is known as an advanced electronic signature. This is like a normal electronic signature but it is more secure as it can only be issued by an authentication services provider whose products and services have been accredited by the South African Accreditation Authority.

An advanced electronic signature applies to electronic documents only. Such a signature is mandatory for documents that are required by law to be in writing and signed. Moreover these documents must be accessible in a manner usable for subsequent reference.

It is, however, important to note that in terms of the ECTA the following cannot be concluded electronically:

  • An agreement for the sale of immovable property;
  • A long-term agreement for immovable property, such as a lease, which is in excess of 20 years;
  • A bill of exchange, such as a cheque; and
  • Wills or codicils.

Therefore it follows that the documents mentioned above may also not be signed electronically.

The ECTA recognized electronic signatures in 2002, however the South African Accreditation Authority only made this position official in 2012 when it accredited the first authentication services provider to issue advanced electronic signatures.

Written by Molisa Cheda.