This much vexed and discussed topic cannot be considered in isolation – as a matter of background, attention must be given to the common law, what a signature is and its purpose.
OK so what is a signature?
The common law determines that a valid signature must meet the following requirements:
* It must be the name or mark of a person
* It must appear on the document in question
* The author of the name or mark must have applied his/her mind
* Likewise, such a party must have had the intention to sign the document – as you will see shortly this element is arguably paramount.
The next and obvious question is: ‘What is the purpose of a signature‘’?
It is evidence of:
* The identity of the signatory
* and the the signatory intended the signature (as above, name or mark) to be his/her signature
* The writing or text associated with the signature has been adopted or approved by the signatory.
It is also important to note that the lack of a written signature does NOT invalidate a contract or agreement – the essence of a binding agreement is consensus and this can be reached not only by a written signature confirming it, but also by a verbal exchange or an adequately worded electronic exchange, provided in all cases the participants to the consensus were competent. Similarly, an agreement does not have to be in writing to be enforceable, although the issue of proof becomes an issue.
A further commonly asked question is, what is the purpose of a witness signature?
It is important to differentiate between documents that by law require a witness and signature of the witness to validate the document, such as a will and other written agreements. The latter may have a clause requiring the contracting parties’ signatures to be witnessed, but in lieu of such a clause, the only reason for parties to witness the contracting parties signing, and then affixing their signatures as witnesses, is really an evidentiary one: if a dispute arises later as to whether the agreement was signed or, if was in fact signed, as to the identity of the signatory(ies), a witness signature can be extremely useful!
In Part 2 we will discuss the Electronic Communications and Transactions Act, Act 25 of 2002 (‘ECTA’)
© ADV LOUIS NEL LOUIS-THE-LAWYER
FEB 08 2020
DISCLAIMER – Each case depends on its own facts & merits – the above does not constitute advice – independent advice should be obtained in all instances