Posted on by Benn Van Wyk

Electronic Signing & Authentication of Documents

by Veronica Bhengu

 

The legal aspect of electronic signatures and their binding nature will be highlighted. Furthermore, the legal requirements for the authentication of documents will be perused.

Electronic signatures

It is important to establish what is meant and required by the term ‘signature’ to enable us to delve into the electronic version of same. According to the common law, a signature is deemed valid if:

  1. It is the name or a mark of a person associated with the document;
  2. The signature must be applied by the person him/herself;
  3. There must be an intention to sign.

The Electronic Communications and Transactions Act, 25 of 2002 (hereinafter referred to as ‘The Act’) recognises the electronic signature and confirms that it is not without legal force only because it is in an electric form. Therefore, the functionality of an electronic signature is equivalent to a traditional ink signature.

The functional requirements of a signature are:

  1. Provide evidence of the identity of the signatory
  2. The intention of the signatory
  3. Confirmation of the text or writing associated with the signature.

The above seeks to emphasise that what can be achieved in wet ink can so be done electronically and that the South African Law recognised electronic signatures and this is supported by the act.

An electronic signature can be executed using various digital platforms. This method allows parties to sign documents in any circumstance without needing printers and scanners.

Certification of documents

When there is a requirement for documents to be certified, a person will have to approach a Commissioner Of Oaths as defined in Section 5 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 to attend to same.

The commissioner of oaths will require the document in its original form. The Commissioner of Oaths will stamp a copy of the document with a certification stamp including the following details:

  1. Name, Surname and designation of the Commissioner Of Oath;
  2. Date of certification;
  3. That he/she certifies that the document is a true copy of the original document; and
  4. The Commissioner Of Oaths will need to add his/her signature

Furthermore, it is possible for a commissioner of oaths to certify a copy of an electronically generated document, for example, a bank statement generated from a banking app. This is governed by Section 18 of the Act and the following procedure needs to be adhered to:

  1. The commissioner of oaths must view the electronic document on the software it is presented on and
  2. Thereafter certify (as provided above) the printed copy as a ‘true copy’.

Commissioning of affidavits

In terms of the Regulations Governing the administering of an oath or affirmation a Commissioner Of Oath is in terms of Section 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, a Commissioner must administer the oath to the deponent (a person who testifies) after ascertaining that the deponent understands the contents of the affidavit and its binding nature. According to Regulation 3(1) the process will be as follows:

Once the commissioner of oaths has been satisfied with the identity of the deponent and that he/she understands the content of the affidavit. He /she will add his/her signature, date and add the place where commissioned.

The Regulations and the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 are silent on situations and circumstances where neither the deponent or the commissioner of oath cannot be physically present at the time of the commissioning of an affidavit.

Disclaimer: The above is not a legal opinion merely a research article. Please consult a legal practitioner prior to engaging in the electronic signing of documents.