The shift towards remote work and social distancing measures has significantly altered how agreements are executed in South Africa. Many individuals and businesses are now adopting electronic methods for signing contracts and other legal documents. This raises an important legal question: Are electronically signed documents enforceable as contracts?

The Legality of Non-Written Contracts

Firstly, it’s essential to understand that not all contracts need to be in writing to be enforceable. However, there are exceptions, such as leases exceeding ten years, antenuptial contracts and agreements for selling immovable property, which must be in writing.

Defining a Written Signature

Traditionally, a signature is a person’s name written distinctively to authorize a document. But how does this apply in the digital realm?

Electronic Signatures under South African Law

The Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) addresses the legality of electronic signatures in South Africa. ECTA recognizes "digital signatures" if they meet specific requirements. According to ECTA, an 'electronic signature' is data attached to, incorporated in, or logically associated with other data, intended by the user as a signature.

Examples of Electronic Signatures

• Uploading a photo of your handwritten signature and incorporating it into a document.

• Typing your name on a PC as a form of signature.

The key is the intent to use the electronic signature as a signature and its logical connection to the associated data.

Advanced Electronic Signatures

It’s crucial to note that if a law requires a signature and does not specify the type, this requirement is met only with an advanced electronic signature. This is a type of electronic signature accredited by the Accreditation Authority, as per ECTA.

Conclusion

The use of electronic signatures in South Africa, as governed by ECTA, offers a flexible and legally recognized method for executing contracts in our increasingly digital world. However, understanding the nuances and legal requirements is crucial. For more information on electronic signatures, their legal implications, and assistance in setting up workplace policies for electronic contracting, our law firm is at your service. Contact us today for expert legal guidance.