*Information in this document has been extracted from the Bowmans ‘Practical Note on Electronic

Signatures’.

1. What are handwritten signatures as opposed to electronic and advanced signatures? What distinction
can be drawn between electronic and advanced signatures?

A handwritten signature is the traditional method by which contracting parties indicate their mutual
assent to the terms of a contract. Commonly understood, a signature is defined in the Concise Oxford
Dictionary (12th edition) as “a person’s name written in a distinctive way as a form of identification”.
The courts have traditionally been willing to accept any mark or symbol by which a person chooses to
represent him or herself, i.e. any mark made by a person for the purpose of attesting a document, or
identifying it as his or her act, to be a valid signature. As such, a thumbprint or an “X” can be
sufficient, in certain circumstances, to count as a signature. The approach of the courts to signatures
has, accordingly, been pragmatic as opposed to formalistic, i.e. the courts will generally consider
whether the “method of the signature used fulfils the function of a signature – to authenticate the
identity of the signatory – rather than insist on the form of the signature used”.

As technology has advanced, documents that previously would have been physical, hard-copy
documents are often drawn up electronically and various mechanisms have been developed for
documents to be signed electronically without it being necessary to print out a hard-copy of a
document and affix a handwritten signature. The Electronic Communications and Transactions Act 25
of 2002 (ECTA) makes provision for these electronic signatures.

A distinction is drawn in the ECTA between “electronic signatures” and “advanced electronic
signatures”. An “electronic signature” is defined in the ECTA as “data attached to, incorporated in,
or logically associated with other data and which is intended by the user to serve as a signature”. This
generally refers to any type of digital marking that is used by a person to be bound by a document or
to authenticate a record. Examples of what are referred to as electronic signatures are digitized or
scanned images of handwritten signatures, typed notations, a click in a check-box to agree to terms
and conditions or more advanced signatures such as biometric signatures.

On the other hand, an “advanced electronic signature” is defined in the ECTA as an electronic
signature that “results from a process which has been accredited by the Accreditation Authority”, as
appointed in terms of the ECTA. The Accreditation Authority is the Director General of the
Department of Communications and Digital Technologies, who may appoint Deputy authorities and
officers.

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 *Information in this document has been extracted from the Bowmans ‘Practical Note on Electronic
Signatures’.
Therefore, the only difference in South Africa between an “electronic signature” and an “advanced
electronic signature” is that the provider of the advanced electronic signature is accredited by an
Accreditation Authority (see question 2 below for more detail).

Where the signature of a person is required by law and such law does not specify the type of
signature, that requirement is met only if an advanced electronic signature is used.

2. How is an advanced electronic signature obtained, if required by law?

An advanced electronic signature has to be provided by an accredited third party provider that has gone
through various audit and accreditation processes with the Department of Communications. At this
stage, only LawTrust and the South African Post Office are accredited providers of advanced electronic
signatures (see http://www.saaa.gov.za/index.php/accreditation.html ).

3. Discuss the admissibility of, and evidentiary burden to prove, the validity of handwritten signatures,
electronic signatures and advanced electronic signatures.

In terms of the South African laws of evidence, where a document is presented in evidence before a
court and its authenticity is disputed, the general rule is that the party who tenders the document
must ordinarily adduce evidence to satisfy the court of its authenticity. 1 This usually means proving
that the document was written, executed or made by the person who purported to have done so,
and to either call the writer to identify the document and attest to his or her signature, or to call a
witness who is able to identify the handwriting on the document, or who witnessed the document
being signed.2

Generally, if the authenticity of a document is not proven or admitted, its contents cannot be used as
either evidence or for the purpose of cross-examination, subject to the proviso that its authenticity
may be proven at a later stage of the trial (after cross-examination).3

Due to the provisions of the ECTA, the same evidentiary principles that apply to the authentication of
a handwritten signature apply to electronic signatures as well. 4 As such, there is no difference in the
context of legal proceedings between a handwritten signature and an ordinary electronic signature.
In legal proceedings, where an electronic signature has been used and there is a dispute as to its
validity, some evidence may need to be led to show that an electronic signature is the signature of a
particular person. By contrast, an advanced electronic signature is generally regarded as being a valid
electronic signature and to have been applied properly unless the contrary is proved. 5 Accordingly,

1 Zeffert (2009) The South African Law of Evidence 837.

2 Zeffert & Paizes Essential Evidence 264; Policansky Bros Ltd v L & H Policansky 1935 AD 89 para 90-91.
3 Zeffert (see footnote 32 above) 838.
4 Section 34(4) of the Civil Proceedings Evidence Act 25 of 1965 provides that a statement in a document that is introduced in evidence “will not be deemed to have been
made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise
recognized by him in writing as one for the accuracy of which he is responsible”.
5 Section 13(4) of ECTA.
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 *Information in this document has been extracted from the Bowmans ‘Practical Note on Electronic
Signatures’.
the onus of proving that a document was not signed by a particular person using an advanced
electronic signature falls on the person alleging that the document was not signed by that person.

4. Can electronic signatures be attached to documents?

In terms of ECTA, an electronic document has the same legal force and effect as a physical
document.6

If not required by law (i.e. a statute), an ordinary electronic signature (i.e. whatever someone says is
their electronic signature, for example, a pdf of their wet signature, a signature provided by a third
party provider but that does not amount to an advanced electronic signature, just something with
the person’s name saying “signed electronically”, etc.) is acceptable for most purposes. 7

5. Which documents can be signed by electronic signature vs which documents must be signed by
advanced electronic signature and which must be in hard copy?

An ordinary electronic signature is suitable for most purposes.

However, where a law requires the signature of a person, but the law does not indicate the type of
signature to be used, then only a wet signature or an advanced electronic signature may be used, i.e.
an ordinary electronic signature will not suffice. An advanced electronic signature will also be
required where specifically required by law.

Further, there are certain instances in which no electronic signature, regardless of whether or not it
is an advanced electronic signature, may be used. This includes a prohibition on the use of an
electronic signature for: an agreement for alienation of immovable property as provided for in the
Alienation of Land Act 68 of 1981, the execution of a bill of exchange as defined in the Bills of
Exchange Act 34 of 1964, and the execution, retention and presentation of a will or codicil as defined
in the Wills Act 7 of 1953.

6. Can electronically signed agreements, resolutions and any other documents be re-signed with wet ink
signatures?

A document can only be executed once and any attempt to resign the document with wet ink can
only create uncertainty as to which signature is valid and which document is the “original”, see the
evidentiary burden provisions above. However, many South African banks still insist that where
agreements and security documents are signed electronically, that the Bank is still also provided with
wet ink documents after the fact for their record purposes. Remember that you can never back-date
a signature.

6 Section 11(1) of ECTA.

7Section 13(1) of ECTA states that “[w]here the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a
data message is met only if an advanced electronic signature is used” (underlined emphasis added).
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 *Information in this document has been extracted from the Bowmans ‘Practical Note on Electronic
Signatures’.
7. Does it make a difference whether a scanned copy or photo of a wet ink signature is circulated?

In our view, it is irrelevant whether a scanned copy or photo of the signed document is received. The
main consideration should be whether the evidentiary burden in relation to such signature would be
discharged should there be a dispute.

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