Let's start by breaking it down to layman's terms fist;
Firstly, most types of business documents do not require Advanced Electronic Signatures (AES). Advanced Electronic Signatures are only required where it is specifically prescribed in Law that a document needs to be signed (or have formalities validated). This means, that if your document is not specifically prescribed by any legislation or ACT, it can be signed with an ordinary electronic signature (also mentioned in the Electronic Communications and Transactions (ECT) Act), or almost any form of digital signature which provides better non-repudiation.
The ECT Act of 2002 allows ordinary electronic signatures (without additional criteria associated with digital or advanced electronic signatures) to be used in the vast majority of instances where records are now electronic and in which you would traditionally have used hand-written (manuscript) signatures on paper.
Samples of documents in business that must be signed using an Advanced Electronic Signature (i.e. SignFlow SALegal Signature) are:
- Donations agreements (General Law Amendment Act 50 of 1956)
- Surityship agreements (General Law Amendment Act 50 of 1956) - Provision is made that it is valid if signed in person, so SignFlow's Face-to-face digital signing will suffice.
- Antenuptial contracts (Deeds Registries Act 47 of 1937)
- Alienation of a housing interest (Housing Development Schemes for Retired Persons Act) - Offer to Purchase (OTP)
- Franchise agreement (Consumer Protection Act 68 of 2008)
- SANAS (South African National Accreditation System) Certificates (Accreditation for conformity assessment calibration and good laboratory practice Act 19 of 2006)
- Sale of company shares (In terms of the Companies Act 71 of 2008)
- Notarised documents.
SARS (South African revenue Services) has released specific documentation (Legal & Policy) encouraging electronic signatures and explicitly discouraging the use of Advanced Electronic Signatures. The documentation states that it is at the discretion of SARS to choose the kind of signature it requires. "SARS does not require the use of an advanced electronic signature as it wants to encourage the use of its electronic services and requiring such a signature may preclude some people from utilising these services" - Extract Page 16 - Source: http://www.sars.gov.za
So, in layman's terms, if the electronic documents you are signing or sending to others to be signed, are not listed above, you don't need an Advanced Electronic Signature.
SignFlow digital signatures (SignFREE and SignFlow Professional) meet - and, in fact, far exceed - the provisions of the ECT Act of 2002, including the amendment Bill of 2013, as an electronic signature, as these signatures from SignFlow are digital signatures which have higher levels of authentication, encryption and cryptographic properties than what the required electronic signatures does. (See more in-depth detail below).
Does SignFlow's have an Advanced Electronic Signature offering?
Yes. As SignFlow has customers that require, or prefer to have, Advanced Electronic Signatures, provision is made for such using the SignFlow SALegal license, which utilises the SAPO Class 4 Advanced Electronic Signature certificates to sign documents. The South African Post Office (SAPO) TrustCentre is fully accredited by SAAA (South African Accreditation Authority) and PBSA (owner of SignFlow) is an accredited distributor (Registration Authority or R.A) of the SAPO Class 4 Advanced Electronic Signature (AES).
Just as some other providers in South Africa, which mostly use US-based software (see below for POPI implications of this) to apply the AES certificates to documents when digitally signing, we use SignFlow.
POPI (Protection of Private Information Act) South Africa:
SignFlow Cloud is locally hosted at Dimension Data's Internet Solutions in Bryanston, Johannesburg in a highly secure, state-of-the-art DC. This means that your documents, even if they are in the cloud, are never transmitted or stored outside the borders of South Africa, which is a requirement of the POPI Act.
Here is a little more in-depth look at the above:
The Electronic Communication and Transactions Act of 2002 - in particular Section 13 - refers:
- (1) 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.
- ➡ Law, as referred to in this context, includes not only statutory legislation, but also common law as well as secondary legislation, explicitly stating that a document has to be signed in order to be valid. Examples of such documents are suretyship agreements and franchise agreements.
- (2) …an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form.
- ➡ This sub-section explains that in essence, an electronic signature will have the same force and effect as a manuscript/paper-based signature.
(3) 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) a method is used to identify the person and to indicate the person’s approval of the information communicated; and
- (b) 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.
- (4) Where an advanced electronic signature has been used, such signature is regarded as being a valid electronic signature and to have been applied properly, unless the contrary is proved.
- ➡ The use of an Advanced Electronic Signature (AES) is therefore prima facie proof that the signature is valid and binding. The burden of proof thus shifts to the person alleging and not the person who signed with an AES.
“(5) Where an electronic signature is not required by the parties to an electronic transaction, an expression of intent or other statement is not without legal force and effect merely on the grounds that -
- (a) it is in the form of a data message; or
- (b) it is not evidenced by an electronic signature but is evidenced by other means from which such person’s intent or other statement can be inferred” .
- ➡ This section confirms that an expression of intent in electronic format will be valid and admissible.
- From these brief extracts, it is clear that, electronic signatures and electronic documents are permitted and legally enforceable, thus, allowing for the implementation of a digital means of transacting and signing
How SignFlow handles Identity, Intent and Integrity when issuing all digital signatures:
- Strict, auditable methodology is followed to authenticate all users at sign-up (over and above the additional verification of AATL and AES):
- Checking the identity credentials against verified IDV data.
- Mobile number OTP (One Time Pin).
- Email address verification.
- Intent - through digital processes of positive actions that are recorded in an audit trail.
- Protection of the integrity of the document by applying a digital signature using X.509 technology that also contains the identity and authentication credentials of the user, which are embedded in the signed PDF for verification and audit, using Acrobat.
A SignFlow deployment will typically consist of a mix of licenses throughout a large organisation, based on different roles and management levels. Typically, the majority (+/-50%) SignFREE with workflow, followed by SignFlow Professional AATL (+/-45%) and SignFlow SALegal AES (+/-5%) - These may vary from one organisation to another.
For relevant Case Law on electronic signatures, please refer to Supreme Court of Appeal judgment, Spring Forest Trading v Wilberry that went so far as to rule in favour of ordinary electronic signatures, in that something as basic as the name of a person at the bottom of an email, constitutes an enforceable and binding electronic signature.
If you are still unsure, please send us your documents and we will submit these to our compliance specialist law firm for specific opinion, on us!
Speak to a digital signature expert today, call +27 (0)11.516.9403 or send an Email message to Contact us with your questions.
Sources and reference material:
- SMIT Compliance
- - Opinion related to Advanced Electronic Signatures
- - Opinion relating to contract formalities in terms of ECT Act
- - Opinion relating to electronic signatures in South Africa
- - Opinion relating to the signing of a contract of employment
- - Opinion relating to validity of international digital signatures in SA
- South African Government - The Government Gazette - Electronic Communications and Transactions Act of 2002
- South African Revenue Services - Guide to Electronic Communications (Tax Administration)
- South African Accreditation Authority
- Law Society of South Africa - Guidelines: Electronic Signatures for South African Law Firms
- Dingley Marshall - Electronic Signatures in South Africa
- Michalsons - Sign quickly by doing it electronically