Picture: 123RF/gajus
Picture: 123RF/gajus

As the Covid-19 lockdown continues into its fourth week, you may need to sign legal documents to keep your personal finances on track. You can sign some electronically, but there are different types of electronic signatures and you need to choose the right one for your protection.

Yaniv Kleitman, a director at Cliffe Dekker Hofmeyr, says when a form of electronic signature has not specifically been agreed to, there can be uncertainty as to its validity.

In a recent South African case, Global & Local Investment Advisors was taken to court by its client, Nickolaus Fouché, after the company released more than R800,000 of his funds in response to fraudulent e-mails.

The written mandate between Fouché and Global & Local Investment Advisors stipulated that instructions must be sent by fax or e-mail with Fouché's signature.

However, his Gmail account was hacked, and three e-mails were sent to the investment firm with instructions to transfer specified amounts to other accounts. None of the e-mails had attachments and each ended with “regards, Nick” or “thanks, Nick”.

Fouché requested that his funds be reinstated on the basis that the instructions were not from him. The company argued that “regards, Nick” or “thanks, Nick” constituted an electronic signature.

However, the Supreme Court of Appeal found the e-mails were not signed, as to sign is to “affix one's name to a writing or instrument, for the purpose of authenticating or executing it, or to give it effect as one's act”.

Electronic signature options

Maeson Maherry, chief solutions officer at IT security solutions firm LAWtrust, says there are three acceptable electronic signatures you can use for business and legal purposes.

• A basic electronic signature or click-to-sign.

“This is a simple, albeit low-assurance electronic signature where you click on a link in an e-mail and go through to a signing portal where you then type your name to complete the signing action,” says Maherry.

“The assurance of this signature depends on the reliability of the e-mail system and its security,” he says. Most companies now use this system if you are required to sign or acknowledge documents online, but it is the least secure because there is no way to prove who completed the signing action.

• A secure electronic signature or digital signature.

Maherry says a secure digital signature has become global best practice as you verify your identity with an accredited signature provider, then typically visit a web portal to view a document needing your signature. “You authenticate yourself via your username and a one-time password that is SMSed to you to ensure that only you can apply the signature.

“Your verified name and a time stamp are encrypted into the document, which is also protected from further changes.”

• An advanced electronic signature (AES).

This is like the secure digital signature but with the additional requirement that it has been vetted by one of two South African accredited Trust Centres — LAWtrust or the South African Post Office — during a face-to-face identity-proofing process.

You would need to have done this before the lockdown. Maherry says LAWtrust is not now signing up new clients for this service.

Mandatory for legal documents

Carla Collett, a senior associate at Webber Wentzel, says an AES is mandatory when your signature is required by law.

“Public bodies in SA can also issue and file documents in electronic form. While physical access to our courts is now restricted, new proceedings may be instituted electronically,” she says.

Ridwaan Boda, head of technology, media and telecommunications at ENS, says if your signature is required by law but the law does not specify the type of signature, you need to use an AES.

He says certain agreements may not be validly concluded electronically, such as an agreement for the sale of immovable property, long-term leases of land exceeding 20 years, a will, and bills of exchange such as cheques.

Your options during lockdown

Maherry says since you cannot sign up for a new AES during the lockdown, most businesses are opting for a secure digital signature where your identity can be proved via an app or a quick video call. Your signature is secured through strong authentication, which protects you and has an independent time stamp that seals all the evidence into the document.

“Signed documents can simply be verified automatically by opening them in the free Adobe Reader, which supports the standard, and [this] visually assures you of the authenticity of the document and the signer,” he says.

When you use Adobe, a pop-up window helps you to verify a digital signature with information about the date and time the document was signed, the full names of the signer, the certificate information, its issuer and the expiry date.

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