INTRODUCTION
When we think of signatures, we often picture a pen, wet – ink and paper. But in today’s digital world, most of us are signing documents without even picking up a pen. In fact, South Africans are using electronic signatures every day, whether it’s agreeing to terms on a mobile app, confirming a delivery with a finger swipe, or authorizing a bank transaction online.
Electronic signatures, or e-signatures, have quietly become part of our daily routines. Yet many people don’t fully understand what they are, how they work, or their legal power in South Africa. So let’s unpack how electronic signatures are shaping the way we do business, communicate, and make agreements in the digital age.”
In South African law, the Electronic Communications and Transactions Act 25 of 2002, more specifically, Section 13 of the Act allows for contractual agreements to be signed electronically via electronic signatures, advanced electronic signatures and a signature by reference, which means a generic email signature.
DIFFERENCE BETWEEN ELECTRONIC AND ADVANCED ELECTRONIC SIGNATURE
Although they all constitute signatures, there are differences between electronic signatures, advanced electronic signatures and signatures by reference. An electronic signature refers to data that is attached to, included with, or logically linked to other data, and is intended by the user to function as a signature. This can take various forms—from a handwritten signature scanned and sent electronically, to commonly used digital signature tools, or even simply clicking an “I accept” button on a website.
An Advanced Electronic Signature is defined as an electronic signature that results from a process that has been accredited by the South African Accreditation Authority (SAAA), in which the advanced Electronic Signature:
• Is uniquely linked to the signatory;
• Is capable of identifying the signatory;
• Is created using means that the signatory can maintain under their sole control; and
• Is linked to the data to which it relates in such a manner that any subsequent change to the data or the signature is detectable.
The aforesaid criteria align with international standards, although the Act specifically requires accreditation of the signature creation process in South Africa to qualify as an advanced electronic signature.
The application of electric signatures took centre stage in a judgement issued by the High Court, which offered valuable insight as to whether electronic signatures can bind a party to a contractual agreement, this particular case, a credit agreement. In FirstRand Bank Limited t/a Wesbank v Govender [2023] ZAGPJHC 610 the Court was required to determine whether a valid electronic contract had been concluded in accordance with the requirements set out in the Electronic Communications and Transactions Act.
BACKGROUND OF THE GOVENDER CASE
The dispute arose after Govender failed to comply with the terms of a credit agreement, which he electronically signed and entered into with First Rand Bank Ltd. As a result, Wesbank instituted proceedings against Govender for breach of contract, seeking repossession of the vehicle and damages.
Govender disputed liability, contending that the electronic signature on the credit agreement was not his. Govender further claimed that he only became aware of the agreement upon noticing unauthorised debit orders on his bank account.
The burden of proof rested on Wesbank to establish that the electronic signature on the credit agreement was indeed appended by Govender, or by someone authorised by him. To this end, Wesbank led witness testimony and presented supporting evidence, including a recorded telephone conversation between Govender and its call centre.
The Court accepted Wesbank’s version and found, on a balance of probabilities, that the electronic signature affixed to the agreement was attributable to Govender and had been appended with his authority and that the credit agreement entered into between Govender and First Rand Bank Ltd was validly concluded.
The court went further and found that through his conduct, Govender accepted the terms of the credit agreement by taking possession of the motor vehicle, allowing his bank account to be debited each month with the repayment amount as contained in the credit agreement and in all material terms adhering to the terms of the credit agreement until the subsequent default. The court held that the credit agreement entered into between Govender and First Rand Bank Ltd was validly concluded.
CAN ALL AGREEMENTS BE SIGNED ELECTRONICALLY
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Electronic signatures are valid for most transactions and documents; however, there are a few exceptions. Electronic signatures may not be used for the following:
• The execution of wills or codicils;
• Contracts involving the sale or transfer (alienation) of immovable property;
• Bills of exchange, such as cheques and promissory notes; and
• Lease agreements for immovable property that exceed a duration of ten years.
CONCLUSION
As we continue to embrace the digital era, electronic signatures are no longer just a convenience, they are key components of how modern transactions are conducted in South Africa. The Electronic Communications and Transactions Act 25 of 2002, provides the legal foundation that provides electronic signatures their validity and enforceability.
Understanding these tools and their legal standing empowers individuals and businesses to operate more efficiently, securely, and confidently in a rapidly changing digital space. Although, certain exceptions remain, the vast majority of agreements can now be executed electronically and it is not a pre – requisite for wet – ink to be utilised. In this way, electronic signatures are not only transforming how we sign documents, but also how we build trust and conduct business in this digital age.
For tailored legal advice, contact an attorney at Schoeman Law
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