What counts as an electronic signature?
Section 1 of the ECT Act defines it broadly:
“data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature”
In plain words: whatever you add to an electronic document, meaning it as your signature. A typed name, a drawn signature or an “I accept” click can qualify.
Two neighbouring sections do the same for the document itself. Under s11(1), information is not without legal force just because it is in the form of a data message. Under s12, where a law asks for something in writing, a data message that stays accessible for later reference meets it, except where Schedule 1 switches that rule off.
That covers most of what people sign: employment contracts, residential leases, NDAs, offer letters and school forms. If only your own signature is needed, you can sign a PDF yourself, free.
Ordinary and advanced electronic signatures: what’s the difference?
An ordinary electronic signature
“Ordinary” is the everyday name for any electronic signature that is not advanced. Section 13(2) is the rule that gives it force. Where the parties themselves require a signature but have not agreed on a method, s13(3) asks that the method identify the person, show their approval, and be as reliable as the purpose needs.
An advanced electronic signature
An advanced electronic signature comes from a process accredited under s37. The accreditation criteria in s38(1) include “face-to-face identification of the user”, so getting one means proving who you are in person. Under s13(4), it is regarded as valid and properly applied unless the contrary is proved.
| Ordinary | Advanced | |
|---|---|---|
| What it is | Any electronic signature that is not advanced: data the signer intends as a signature (s1). | An electronic signature that results from a process accredited under s37 (s1). |
| Who signed | Where the parties require a signature, the method must identify the person and show their approval (s13(3)). | Accreditation requires face-to-face identification of the user (s38(1)(e)). |
| When it is enough | Most documents. It does not lose force because it is electronic (s13(2)). | Needed where a law requires a signature without saying which kind (s13(1)). |
| In a dispute | Weighed on the evidence, including how reliably the record was kept and how the signer was identified (s15). | Regarded as valid and properly applied unless the contrary is proved (s13(4)). |
When the law asks for an advanced one
“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 advanced electronic signature is used.”
That applies only where a law requires a signature and does not say which kind. A suretyship is the common example: under s6 of the General Law Amendment Act 50 of 1956 it must be in writing and signed by or for the surety, so electronically only an advanced signature meets it.
Where it is the parties’ own contract that requires a signature, s13(1) does not apply. The Supreme Court of Appeal said so in Spring Forest.
What does “accredited” mean?
The Director-General of the Department of Communications and Digital Technologies acts as the Accreditation Authority (s34). Accreditation is voluntary (s35): nobody needs it to sell authentication products. The Authority keeps a public database of what it has accredited (s36(2)), and it may accredit authentication products and services that support advanced electronic signatures (s37(1)). Falsely claiming accreditation is an offence (s37(3), with the penalty in s89).
The South African Accreditation Authority publishes the current list of accredited providers. Sent a signed PDF? KuduDoc’s PDF signature checker lets you see which issuer a signed PDF’s certificate comes from.
Which documents does the ECT Act leave out?
Section 4(4) says the Act must not be read as giving validity to any transaction in Schedule 2. There are four. Schedule 1 (s4(3)) goes further: for the laws behind them, it switches off the ECT Act’s own writing and signature sections, as the last column shows.
| In plain words | The law behind it | Schedule 1 effect |
|---|---|---|
| An agreement to sell or otherwise alienate landItem 1 | Alienation of Land Act 68 of 1981 | Sections 12 and 13 (writing and signature) do not apply to this Act. |
| A lease of land for more than 20 yearsItem 2 | Alienation of Land Act 68 of 1981 | The same: sections 12 and 13 do not apply. |
| The execution, retention and presentation of a will or codicilItem 3 | Wills Act 7 of 1953 | Sections 11 to 16 and 18 to 20 do not apply to this Act. |
| The execution of a bill of exchange, which includes a chequeItem 4 | Bills of Exchange Act 34 of 1964 | Sections 12 and 13 do not apply to this Act. |
Formalities outside the ECT Act also decide some documents: a notary and the deeds office for antenuptial contracts and notarial deeds, and a commissioner of oaths for affidavits. A stronger signature does not replace them.
A will is signed on paper, with two witnesses present at the same time (Wills Act s2(1)(a)). KuduDoc prepares a will for you to print and sign in ink.
What have the courts said?
Two Supreme Court of Appeal judgments set the line between a signature the parties ask for and one that fails to show who acted.
Spring Forest Trading v Wilberry
The parties’ agreements required a cancellation to be “in writing and signed”. The cancellation came by email, with the senders’ typed names at the foot. The court held that those typed names were electronic signatures that met the requirement.
Section 13(1) applies where a law requires a signature, not where the parties do, so s13(3) applied instead.
[2014] ZASCA 178 · 21 November 2014
Global & Local Investments Advisors v Fouché
Mr Fouché’s mandate required payment instructions to carry the client’s signature. Fraudsters hacked his email account and sent instructions signed “Nick”.
The mandate did not say “electronic”, and the signature it required served to authenticate. The court held that the emails did not bind Mr Fouché.
Case 71/2019 · 18 March 2020
A third judgment is about wills. In Van der Merwe v Master of the High Court (Supreme Court of Appeal, 2010, [2010] ZASCA 99), the court accepted an unsigned will the deceased had sent by email, under s2(3) of the Wills Act, in a case brought after the death. Sign your will on paper; this is not a route to plan around.
How does a court weigh an electronic record?
Section 15 says a data message may not be refused as evidence just because it is a data message, and that it must be given due evidential weight. That weight depends on, among other things, the reliability of the manner in which its integrity was maintained and the manner in which its originator was identified.
Section 14 sets out when a data message meets a requirement to keep a document in its original form, and s16 when it meets a duty to retain one.
The ECT Act asks how reliably a record’s integrity was kept. A seal records the finished file’s fingerprint so anyone can later check that a copy is unchanged since sealing.
Where does KuduDoc fit?
KuduDoc signatures are ordinary electronic signatures under the ECT Act. When you send a document for signature, the signing record shows who each invitation went to and what each person did, and the completed file is sealed. Each person signs from their own link, with a free KuduDoc account.
KuduDoc checks each document before it is sent and won’t send one it recognises as a will, a sale or other alienation of land, a lease of land over 20 years, or a bill of exchange or cheque — sign those in ink; you can still seal the scan. It points antenuptial contracts and other notarial deeds to a notary, and warns you when the wording suggests a document needs a commissioner of oaths or an advanced electronic signature.
Signing record In order
Before sending Document check
This looks like a will. The ECT Act gives no validity to a will signed electronically (Schedule 2), so KuduDoc won’t send it for e-signing.
Print it and sign in ink, with two witnesses present at the same time. You can still seal the scan.
Anyone can check a sealed PDF, free, without an account. Opening a sealed PDF in Adobe? It shows the file as certified by KuduDoc. Here is what Adobe’s signature messages mean.
Signing comes with every plan, including free electronic signatures on Personal. Running a practice? Read about e-signing for professional practices.
Questions people ask
Is an electronic signature valid in South Africa?
Yes, for most documents. Under the ECT Act, an electronic signature does not lose legal force just because it is electronic (s13(2)). The Act gives no validity to the four transactions in Schedule 2, and where a law requires a signature without saying which kind, only an advanced electronic signature meets it (s13(1)).
What is an ordinary electronic signature?
It is the everyday name for any electronic signature that is not an advanced one. The ECT Act defines an electronic signature as data attached to, incorporated in or logically associated with other data, intended by the user to serve as a signature (s1). A typed name, a drawn signature or an “I accept” click can qualify.
What is the difference between an ordinary and an advanced electronic signature?
An advanced electronic signature comes from a process accredited under s37 of the ECT Act, and accreditation requires face-to-face identification of the user (s38(1)(e)). It is needed where a law requires a signature without saying which kind (s13(1)), and it is presumed valid unless the contrary is proved (s13(4)). Most other documents can be signed with an ordinary electronic signature.
Is a typed name or a scanned signature enough?
Often, yes, as an ordinary electronic signature. Where the parties require a signature without agreeing on a method, the method must identify the person, show their approval and be as reliable as the purpose needs (s13(3)). In 2014 the Supreme Court of Appeal held that typed names at the end of emails met a contract’s requirement that a cancellation be signed. In 2020 it held that emails sent from a hacked account, signed with a first name, did not meet a mandate that required the client’s signature. A typed or scanned signature does not meet a signature that a law itself requires (s13(1)).
Is a digital signature the same as an electronic signature?
People say “digital signature” for a signature made with a certificate and cryptography. The ECT Act uses two categories instead: an electronic signature, and an advanced electronic signature, which only an accredited process produces (s1, s37). A certificate-based signature is not advanced unless its process is accredited.
Does an electronic signature need a witness?
A witness is needed where a law or the agreement itself asks for one. A will, for example, is signed in ink with two witnesses present at the same time (Wills Act 7 of 1953, s2(1)(a); ECT Act Schedule 2). Where your agreement asks for a witness, you can add witness fields, and the signer forwards the signing request to their witness.
Does KuduDoc offer advanced electronic signatures?
No. KuduDoc signatures are ordinary electronic signatures under the ECT Act. For a document that needs an advanced electronic signature, use an accredited provider from the South African Accreditation Authority’s list, or sign in ink.
Sources
- Electronic Communications and Transactions Act 25 of 2002gov.zaSections 1, 4, 11 to 16 and 34 to 38, and Schedules 1 and 2 (Government Gazette 23708).
- The ECT Act on gov.za: commencement and amending Actsgov.zaNone of the amending Acts touches the sections this guide relies on.
- Accredited authentication product and service providerssaaa.gov.zaThe South African Accreditation Authority’s current list.
- Spring Forest Trading v Wilberry [2014] ZASCA 178supremecourtofappeal.org.zaTyped names on emails met a contract’s signature requirement.
- Global & Local Investments Advisors v Fouché (71/2019)supremecourtofappeal.org.zaEmails from a hacked account did not bind the client.
- Van der Merwe v Master of the High Court [2010] ZASCA 99supremecourtofappeal.org.zaAn unsigned emailed will, accepted by a court after the death.
- General Law Amendment Act 50 of 1956justice.gov.zaSection 6: a suretyship is in writing, signed by or for the surety.
- Wills Act 7 of 1953justice.gov.zaSection 2(1)(a): two witnesses present at the same time; s2(3).
- Alienation of Land Act 68 of 1981gov.zaThe law behind Schedule 2 items 1 and 2.
- Bills of Exchange Act 34 of 1964gov.zaThe law behind Schedule 2 item 4.
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