The Legal Recognition of Electronic Signatures in South Africa: A Critical Overview
| Date | 01 October 2013 |
| DOI | 10.3366/ajicl.2013.0071 |
| Author | Aashish Srivastava,Michel Koekemoer |
| Published date | 01 October 2013 |
| Pages | 427-446 |
The last two decades have seen an electronic commerce revolution impacting on a range of business and government activities. This revolution is also apparent in South Africa. It has been reported that over R2 billion was spent online in 2010, a 30 per cent increase from 2009.
‘E-Commerce in 2011’, infographic, September 2011, available at
the use of electronic networks to exchange information, products, services and payments for commercial and communication purposes between individuals (consumers) and businesses, between businesses themselves, between individuals themselves, within government or between the public and government and, lastly, between business and government.
Department of Communications, Republic of South Africa,
Keeping the above challenges in mind, the technology of electronic signatures has been established with the objective to identify the creator of the data message
‘Data message’ is defined as ‘means information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy’. See UNCITRAL,
data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory's approval of the information contained in the data message.
UNCITRAL,
See
UNCITRAL,
In order to give legal recognition to electronic signatures so that they will emulate the same assurance and trust that traditional paper-based signatures offer, electronic transactions laws (ETLs) have been implemented at both regional and global level.
For the sake of convenience, the term Electronic Transactions Law (ETL) is used broadly in this article to refer to laws on electronic transactions, including electronic signatures.
The European Union (EU) enacted the Electronic Signatures Directive in 1999 (hereinafter referred to as the ‘ES Directive’) to ensure consistency and legal validity of electronic signatures amongst its member states.See Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community Framework for Electronic Signatures [2000] OJ L13/13, available at
See UNCITRAL,
See M. Wang, ‘Do the Regulations on Electronic Signatures Facilitate Electronic Commerce? A Critical Review’, 23
Many common law countries have adopted a minimalist approach legislation. These include the US, the UK, Canada and New Zealand.
For example, see the Digital Signature Act 1997 (Malaysia). Note that the technology-specific approach has also been referred to as a prescriptive approach in the literature.
These digital signatures are usually based on public key infrastructure (PKI). Note some countries initially adopted a technology-specific approach but later amended their legislation to either a two-pronged or minimalist approach. For example, in Italy and Germany, a technology-specific legislation was initially enacted but was later amended to two-pronged approach legislation. India amended its technology-specific legislation, the Information Technology Act 2000, to a technology-neutral legislation in 2008.
A certification-service-provider can be defined as an accredited agency which, after verifying the identity and other relevant information of the applicant, issues a digital signature certificate to them. Also note that the EU's Electronic Signatures Directive (ES Directive) is a good example of a two-pronged approach legislation. Most countries in the EU have adopted the ES Directive. The legislation in China and Singapore is also considered to be a two-pronged approach legislation. See Electronic Transactions Act 2004 (China) and Electronic Transactions Act 2010 (Singapore).
South Africa aligned its regulation on e-commerce, and specifically the use of electronic signatures, to international standards by adopting the Electronic Communications and Transactions Act 25 of 2002 (hereinafter referred to as the ‘ECTA’), which came into force on 30 August 2002. The ECTA seemingly adopted a two-pronged approach, giving greater recognition to digital signatures issued by recognised certification-service-providers.
ECTA,
The overall objective that the ECTA aims to achieve is to facilitate the use of electronic signatures to provide equal treatment to users of paper-based documentation and users of computer-based information.
J. Coetzee, ‘The Electronic Communications and Transactions Act’, Stellenbosch Law Review (2009): 502.
With this in mind the ECTA rightly points out that an electronic signature cannot be denied legal validity merely on the ground that it is in electronic form.ECTA,
Signature 13.
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.
Subject to subsection (1) an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form.
Where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if–
a method is used to identify the person and to indicate the person's approval of the information communicated: and
having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.
Where an advanced electronic signature has been...
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