THE VALIDITY OF ELECTRONIC SIGNATURES AND THE RESULTANT OFFERS TO PURCHASE

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Electronic signatures are governed by The Electronic Communications and Transactions Act (ECTA).

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Section 13(1) of ECTA states that where a signature is required by law and legislation does not insist on the nature of the signature to be used, an “advanced electronic signature”, as opposed to an “electronic signature”, is to be used for the document to be valid, and to be of force and effect.

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However, ECTA excludes certain types of agreements from being regarded as valid, irrespective of the nature of the electronic signature used. For example, an agreement for the sale of Immovable Property.

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The sale of Immovable Property is governed by the Alienation of Land Act 68 of 1981 (“the Act”) and, Section 2(1) of the Act states that no agreement for the sale of land will have any legal force and effect unless, the agreement is in writing and is signed by the parties thereto or their duly authorized agents. An Offer to Purchase is a Deed of Alienation which is governed by the Alienation of Land Act.

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In order for an Offer to Purchase to be valid in terms of Section 2(1) of the Act, the signatures appearing thereon must be as a result of physically signing by hand and does not include signatures by way of data message, i.e. an electronic signature.

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In conclusion, an Offer to Purchase, signed electronically, is currently not regarded as valid under South African legislation.

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For further assistance/information, kindly email Phillip Silver Mathura at admin@psilver.net

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