But to simply copy a photo image and then to paste it onto a digital copy of a sale agreement…? Is this legal and binding? Does this amount to “making your mark?” This was all “common cause” between the parties.īut – it has been trite law in SA for decades now, that for the sake of a “signature” on a sale agreement of land, a so called “wet ink” signature has always been required or to be more specific, a “mark” made by a person holding a pen or pencil, or even a thumb print using an ink pad.

He had imported images of his actual “wet ink” signature and initials into the DocuSign application on his phone and then applied these to a digital copy of the contract, using the same application. We finally have some case law which is certain to be referred to and relied on (or criticised) in the years that lie ahead, on this vexing topic! In the matter of Borcherds and Another v Duxbury and Others one of the parties had concluded a sale agreement of land on 20 June 2020 in the Eastern Cape, by signing the contract and initialling it, utilising an application loaded onto his cellular telephone called DocuSign. The question which has of course arisen, is what exactly constitutes an electronic signature for the sake of ECTA, when dealing with the sale of land under the ALA? And to top it off, the Electronic Communications and Transactions Act 25 of 2002 (ECTA), specifically states that electronic signatures, may not be used for the sale agreements of land! So we all had to come up with some interesting methods to ensure that sale agreements were properly signed during Covid level 4 and 5 lockdown! In addition the case law that has evolved under the ALA has always interpreted signatures to mean “wet ink signatures”. And this, all because the Alienation of Land Act of 1981 (ALA), requires all sale agreements of land to be signed. Never before in our country’s history, have we seen a concerted effort in the property industry as we did, during levels 5 and 4 of lockdown, for estate agents attorneys sellers and purchasers to find “alternative methods” to sign sale agreements for land, when they had no access to printers and could not meet face to face as we are all accustomed to. Robert Krautkramer discusses a recent case which is certain to be referred to and relied on (or criticised) in the years that lie ahead, on the vexing topic of what actually constitutes an electronic signature for the alienation of land.

Wet signature meaning