The ins and outs on the use of electronic signatures during the national lockdown

In the wake of the Covid-19 outbreak as well as the implementation of a 21-day national lockdown in South Africa, it has become almost impossible to acquire multiple original handwritten signatures on the same document. This poses several problems for companies operating during the lockdown. In business, handwritten signatures are essential on just about all documents.

The need to keep the economy going leads to the necessity to find ways to continue to do business during the lockdown period. A potential solution to this hurdle may be uncovered in the Electronic Communications and Transactions Act 25 2002 (ECTA). The ECTA requires for two types of signatures in electronic form namely, electronic signatures and advanced electronic signatures.

Electronic signatures may be used for most transactions except for where the law specifically states that they may not be used, or where the parties to a transaction agree that they may not be used.

In cases where parties to a transaction have not stipulated the nature of electronic signature required, the electronic signature will be binding only when a method is used to identify the person and to indicate the person’s approval of the information communicated. In addition to this and having regard to all the relevant circumstances at the time the above method was used, the method must be reliable and appropriate for the purpose for which the information was communicated.

Many steps may be taken in order to ensure that the method of an electronic signature in use is reliable and appropriate.  Having the signatory send the signed document promptly to the recipient – reducing the use of intermediaries, the use of a reserved organisation domain name that clearly identifies the company to which the signatory belongs and ensuring stringent compliance with signature formalities that may be specified in the relevant agreement are to name just a few of these steps that may be taken.

Advanced electronic signatures are obligatory where the signature of a person is required by law. The South African Accreditation Authority must accredit the products and services used to create the advanced electronic signature.

It is certainly an unclear and dauting time for South Africa and South African businesses all over the country, however, the challenges we are now faced with will certainly push us to explore previously undiscovered avenues of doing business.

 

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