Does my email signature constitute valid signature to a formal contract?
The above question is governed (and answered) by the Electronic Communications and Transactions Act (“ECTA”) which was enacted in 2002.
The ECTA makes provision for two distinct types of digital signatures, namely: (1) an Advanced Electronic Signature (“AES”); and (2) a normal electronic signature.
An Advanced Electronic Signature (“AES”) is defined as “a signature which results from a process which has been accredited by the South African Accreditation Authority”.
In other words, an AES is a highly specialized digital signature that is created by a special computer program (which has been accredited by the South African Accreditation Authority) which encrypts your personal data (such as your full name, ID number, etc.) and inserts the AES into the relevant electronic document.
A normal electronic signature is defined in the ECTA as “data attached to, incorporated in or logically associated with other data which is intended by the user to serve as a signature”.
So when do you use an advanced electronic signature versus an electronic signature?
Firstly, it is important to note that in South Africa there are certain documents in terms of which a digital signature (whether an AES or normal electronic signature) will not constitute valid signature, such as:
where a contract and/or document specifically stipulates as much;
an agreement for the sale of immovable property;
a long-term lease (longer than 20 years) of immovable property;
for the execution of a bill of exchange (such as a cheque)
for the execution, retention and presentation of a will or codicil; and
the license of intellectual property, intellectual property transfers and employee invention agreements.
Where the law requires a person’s signature on a document, an AES will be required for such electronic signature to be valid. This will also be the case if the document itself makes provision for the use of an AES.
The above does not necessarily mean that a normal electronic signature is of no legal consequence or effect. In this regard, it is important to remember that data messages (such as emails, WhatsApp’s, SMS’s, etc.) hold the same weight as traditional letters, faxes or any other hard copy document. In fact, an electronic signature has the same effect as a traditional “in writing” signature. An electronic signature can be used as a valid signature where parties agree to use it as such, where it is used as a means by which to identify the person and their approval of the information communicated, or when (in the context and relevant circumstances at the time) is used to create the reliable impression that such signature is reliable and appropriate for the intended use.
