Classification of Law
South African law is a ‘mixed legal system’, an amalgam of different legal systems, with its origins derived from both the Continent and in Great Britain. The foundation of South African law is Roman-Dutch law, which is itself a blend of indigenous Dutch customary law and Roman law. South African law in general, comprises ‘common law’ and statutory law. South Africa’s common law is composed of the foundational Roman-Dutch legal principles as modified and interpreted by judicial precedent.
South Africa’s statutory law, as with any other common law country, has augmented the common law and many of the cases before the Court are now concerned with their interpretation and application. Indigenous or customary law denotes those legal systems originating from African societies as part of the culture of particular tribes. In some matters persons can claim to be judged by their tribal law and custom, provided that these are consonant with the Constitution. This applies mainly to customary marriages, succession, guardianship and land tenure.
E-Signature Legality Summary
The governing law in South Africa relating to the use of electronic signatures and records is the South African common law (i.e., the law set down by the old Roman-Dutch authorities, as developed by court decisions) and the ECTA.
Types of Electronic Signature
The ECTA distinguishes between an:
- “electronic signature” (“ES”), which means data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature (i.e., any digital or scanned (often also referred to as “unsecured”) signatures), and
- “advanced electronic signature” (“AES”), which means an electronic signature that results from a process which has been accredited by the South African .za Domain Name Authority.
Documents That May be Signed Electronically
Generally, no special formalities are required for the conclusion of an enforceable contract in South Africa and most contracts are not required to be in a written form, or to be signed. Therefore, contracting parties are responsible for determining the formalities that will be applied to a contract, including whether it will be executed with electronic signatures.
An ES can be used in most transactions when signing documents and contracts electronically and where:
- A method is used to identify the sender and to indicate the sender’s approval of the information communicated, or
- Having regard to all relevant circumstances at the time, the method was reliable and appropriate for the purposes for which the communication was intended.
An ES may not be used where:
- It’s use for a specific transaction is prohibited by law;
- A specific law requires that an AES (i.e., a digital signature) be used; or
- The parties to the particular transaction agree on another method of signature.
Section 13(1) of the ECTA states that where 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 AES (and not an ES) is used. For example, this will be applicable to the following:
- Contracts of Suretyship
- Assignment of Copyright and Exclusive License
- Document to be Notarized
- Certified Documents Existing in Paper or Other Physical Form
- Where a Seal is Required by Law.
The following steps can be taken to ensure that the ES/AES in use is reliable and appropriate:
- Use a dedicated organization domain name that clearly identifies the company to which the signatory belongs;
- Have the signatory send the signed contract directly to the recipient, minimizing the use of intermediaries;
- Take steps to independently verify the identity of the signatory and his or her acceptance of the terms of the contract;
- Ensure strict compliance with signature formalities that may be specified in the relevant contract; and
- Utilize a service provider to authenticate the identity of the signatory as well as the time and date of signature.
The following three cases are examples of where South African courts have addressed the use of electronic signatures:
- Spring Forest Trading v. Wilberry (725/13)  ZASCA 178;
- Global & Local Investments Advisors (Pty) Ltd Appellant v. Nickolaus Ludick Fouché (71/2019)  ZASCA 08; and
- First Rand Bank t/a Wesbank v. Molamugae (24558/2016)  ZAGPPHC 762 (26 February 2018).
DISCLAIMER: The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so DocuSign cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, you should consult with a licensed attorney in your area.
Last updated: September 07, 2021
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