Although in terms of the Electronic Communications and Transactions Act 25 of 2002, where provision was made to allow electronic signatures on legal documents, the exceptions to this allowance is an immovable property agreement of sale, which must be in writing and signed according to the Alienation of Land Act, and long term land leases which exceed 20 years.
An advanced electronic signature (AES) is “an electronic signature which results from a process which has been accredited by the authority as provided for”, according to the ECTA. This authority referred to in this case is the Department of Communication.
An AES must be issued by an accredited service provider and the Dept of Communications has appointed LawTrust as the authentication services provider. Consumers would apply to LawTrust for an AES and use it as a signature on agreements.
Lanice Steward, managing director of Knight Frank Residential SA, has drawn attention to the fact (as it was National Wills Week recently), that wills, too, cannot have electronic signatures on them, nor can bills of exchange, cheques or promissory notes.
This goes hand in hand with the same cautionary measure that a verbal offer on a house is illegal and invalid and although, understandably, buyers will ask an estate agent to give a verbal offer to a seller to get a “feel” of his acceptance, should an agent do so he is actually acting illegally. Agents are bound by the Alienation of Land Act and the Estate Agency Affairs Act to write any offer down and present it to the seller, said Steward.
“In this day and age of electronic communication, where people are reluctant to physically sign or handle documentation, or conclude many transactions while being out of town or the country” said Steward, “there are still the few agreements or documents which will require a signature as acceptance and there is no way of getting around that.”
For further information contact Lanice Steward on 021 671 9120 or email lanice@res.za.knightfrank.com.
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