Digital Signatures can ease the load

If you are still using your pen to sign – then it is about time to Go Digital and Sign Electronically. If you are looking for the ease of not having to search for a printer to print your document so that you can sign it and then not having to look for a scanner to scan your signed document so you can send your document to a client, think digital. If you are working remotely and need to affix your signature, the solution is simple – sign electronically!

“Signing electronically is a great tool for lawyers and for business – where documents are generated electronically and need an authenticated signature before despatch.

It is all so simple and the Electronic Communications and Transactions Act No. 25 of 2002 facilitates and recognises electronic signatures in the transmission of data messages. Be mindful that where a signature is required by law and the law does not specify the type of signature an advanced electronic signature is required.

An advanced electronic signature is a signature accredited by the Director General of the Department of Communications . This is an important and critical legal safeguard as the service provider provides a digital certificate that authenticates the identity of the signatory as well as that of the document ( in that the document has not since signature been tampered with with) by means of a digital certificate created by authenticity technologies.

In signature terminology: a digital signature is an electronic signature that can technologically establish authenticity of the document signed and of the signatory. A picture of your signature is not a digital signature.

The Department of Communications has set stringent criteria for service providers and a service provider of products and services designed to identify the holder of an electronic signature to other persons and keep track of the integrity of the document has to successfully complete the ISO 21188 and WebTrust audits to be accredited. The accreditation includes a forensic and legal audit.

While not a legal requirement – a service provider can also choose to take additional safeguards and certify with WebTrust – which means their certificates may be placed in the Adobe Approved Trust List. Simply put this means that the certificate will have the service providers root certification of authority and the AES certification of authority embedded.

This means a user is additionally reassured – when ascertaining whether a document can be trusted or not. If you see a green tick on the certificate then it is an original.

Court pleadings may be signed electronically and this complies with the act. The signature needs to be an advanced electronic signature and has legal force and effect.

Note, however, that court practicalities and process generally require a hard copy original to be lodged with the court and while an advanced electronic signature is perfectly legal and compliant, current court processes do not facilitate electronic document lodging.

Notaries will find the advanced electronic signature extremely useful in that a notary may electronically notarise and certify soft copies of documents by means of an advanced electronic signature [s18. (3) Electronic Communications and Transactions Act ].

In terms of the best evidence rule, digital images are admissible as evidence in the event of loss or damage of and to the original. The courts discretion is only in terms of the weight it attaches to the digital image. In addition, where the law requires a seal to be affixed to a document and the law does not prescribe the method or form by which the document may be sealed, the document may be sealed by electronic means in that the document must indicate it is required to be under seal and must include the advanced electronic signature of the notary [s19. (3) Electronic Communications and Transactions Act].

It is customary for a notary to have a seal but not a legal requirement that a seal be affixed to documents executed in South Africa for use in South Africa. The challenge is that foreign recognition of a document for use outside South Africa may be hindered in that a document may not be recognised if it is not sealed and signed by a notary.

Be mindful that in this instance a notary’s seal will need to be embedded for relevant cross border digital notarisation. Legal and technological efficiency combined with the technological ease of using electronic signatures make a good case for legal and business efficiency and also for administrative convenience.”

Published in the May 2013 edition of Business Day: Business Law & Tax Review