Are electronic signatures legal in South Africa?

What does section 13 of the ECT Act say?

South Africa's Act is unusual because it splits signature requirements by who imposes them. The five subsections of section 13 do different jobs:

• Section 13(1): where a law requires a signature and does not specify the type, only an advanced electronic signature will do
• Section 13(2): subject to that, an electronic signature is not without legal force and effect merely because it is electronic
• Section 13(3): where the parties require a signature but have not agreed the type, any method that identifies the person, shows their approval and is as reliable as appropriate will do
• Section 13(4): an advanced electronic signature is presumed valid and properly applied unless the contrary is proved
• Section 13(5): an expression of intent is not without effect just because it is a data message or is not evidenced by an electronic signature

Advanced electronic signatures and accreditation

Section 1 defines an advanced electronic signature as one that results from a process accredited by the Accreditation Authority under section 37. In practice that means a signature issued through an authentication service provider whose products the Accreditation Authority has accredited.

This is the key line for businesses. Most private contracts are not required by law to be signed at all, so section 13(3) or the parties' own agreement applies and an ordinary electronic signature works. Where a statute does require a signature, such as a suretyship under the General Law Amendment Act, a simple electronic signature will not meet section 13(1).

What have the courts said?

In Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash [2014] ZASCA 178 the Supreme Court of Appeal held that typed names at the foot of emails were valid electronic signatures under section 13(3) for cancelling an agreement whose non-variation clause required writing signed by the parties. Because the signature requirement came from the contract, not from a statute, an advanced signature was not needed.

The decision is the reference point for e-signed commercial documents in South Africa: check whether the signature requirement comes from a law or from the parties.

• The signed PDF and proof it has not changed
• How each signer was identified
• Timestamps, IP address and device data
• Any clause in which the parties agreed how documents may be signed

What do Schedules 1 and 2 exclude?

Section 4(4) says the Act does not give validity to any transaction in Schedule 2, and Schedule 1 switches off key sections for certain statutes. Separately, the Electronic Deeds Registration Systems Act 19 of 2019 provides for electronic deeds registration through the Deeds Office's own system, which is not a general e-signing route.

• Agreements for the alienation of immovable property under the Alienation of Land Act 68 of 1981
• Agreements for the long-term lease of immovable property for more than 20 years
• The execution, retention and presentation of a will or codicil under the Wills Act 7 of 1953
• The execution of a bill of exchange under the Bills of Exchange Act 34 of 1964

Where Sign PDF fits

Sign PDF is an ordinary electronic signature under section 13(2) and (3), and not an advanced electronic signature: we are not an accredited authentication service provider. It records the evidence that matters in a Spring Forest-type dispute, including a six-digit email code, consent to sign electronically, IP address, approximate location, device and UTC times, a SHA-256 fingerprint and a hash-chained audit trail, sealed with an independent DigiCert timestamp.

Use it for employment contracts, NDAs, residential leases under 20 years, service agreements and purchase orders. Do not use it for land sale agreements, wills, bills of exchange or any document where a statute requires a signature, such as a suretyship; those need ink or an accredited advanced electronic signature. This page is general information, not legal advice; check with a South African attorney before relying on it.