Legality and enforceability of electronic signatures in South Africa*

South Africa adopted a two-tier electronic signature structure that differentiates electronic signatures from advanced electronic signatures.

An electronic signature, or a data message, is data generated, sent, received, or stored by electronic means, including the voice, where the voice is used in an automated transaction and a stored record.

An advanced electronic signature is an electronic signature that results from a process accredited by the South African Accreditation Authority, or SAAA.

In South Africa, the requirements threshold for simple electronic signatures is fairly low. According to the law, a transaction can be executed using a simple electronic signature if that signature:

1. Uses a method to identify the signatory and to indicate their approval of the communicated information.
2. At the time of execution, it was as reliable as was appropriate for the purposes for which the information was communicated.
3. The parties to the transaction agreed to use electronic signature.

The advanced electronic signature must comply with the following requirements:

1. The signature is uniquely linked to the user.
2. The signature is capable of identifying that user.
3. The signature is created using means that can be maintained under the sole control of that user.
4. The signature is linked to the data or document to which it relates in such a manner that any subsequent change of the data or data message is detectable.
5. The signature is based on the user's face-to-face identification.
6. The signature is based on the certificate issued by the provider registered with SAAA.

As a general rule, information and signatures cannot be denied legal standing, validity, or enforceability merely on the grounds that it is wholly or partly in electronic form. Also, there is a specific rule stating that information in electronic form, including electronic signatures, must be given due evidential weight in any legal proceeding.

A court determines the validity of an electronic signature by taking into account:

1. The reliability of the manner in which that signature was generated, stored, or communicated.
2. The reliability of the manner in which the integrity of the signature was maintained.
3. The manner in which the signatory was identified.
4. Other relevant factors.

On the contrary, any advanced electronic signature is presumed to be valid by default; in that case, if another party challenges the signature’s validity, they bear the burden of proof.

Under South African laws, parties’ execution of an electronic document using an electronic signature is presumed to indicate their consent to the use of this type of signature. A signatory’s expression of intent cannot be denied legal effect merely because it is in electronic form or it is evidenced by other means from which the signatory’s intent can be inferred.

The following documents require a handwritten signature to be executed:

• The lease of immovable property that exceeds 20 years.
• The immovable property alienation agreement.
• The IP license, IP transfer, and employee invention agreements.
• Wills or codicils.
• Bills of exchange.

Last updated: September 2024