A person's signature is merely a mark by which they identify themselves and a representation of the signatory and the fact that they agree to being bound to the document upon which their signature appears. In the ordinary course, an individual is required to affix a signature to a document which he seeks to be bound by. Signatures are a mechanism that provides evidence of the identity of the signatory, that the signatory intended the signature to be his signature and that the writing or text to which the signature is associated is accepted by the signatory.
It was held by Innes CJ in Burger v Central South African Railways 1903 TS 571 that when a person signs a document, that person is bound by the meaning and effect of the words to which he is a signatory. It was also held in Langeveld v Union Finance Holdings (Pty) Ltd 2007 (4) SA 572(W) that when a person signs a document, the presumption is that they had the intention to enter into that transaction and to be bound by the contents of that document. If a signatory disputes that they entered into an agreement, then by virtue of the common law, which says ‘let the signer beware’, the onus is on that signatory to prove that they had not in fact entered into that agreement.
The question is what happens when you do not have the ability to sign due to a physical impairment (or other reasons)?
There are several Acts (or legislation) that prescribe how people may “sign” when they are physically unable to append a signature. These include the Bills of Exchange Amendment Act 56 of 2000, the National Road Traffic Act 93 of 1996, the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 and the Wills Act 7 of 1953.
A general principle that can be extracted from the above-mentioned Acts is that a person who is unable to write physically may sign by making a mark and such mark must be verified in the manner as stipulated in the specific Act. The general requirement for verifying a mark is that the person who verifies the mark should not have an interest in the matter and that person serves the purpose of attesting whose mark it is that appears on the document and that they witnessed the person sign.
Another manner in which an individual may sign certain documents is through the use of an electronic signature. According to section 1 of the Electronic Transactions and Communications Act No. 25 of 2002 (“ECTA”), an electronic signature is “data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.” It serves as evidence that parties reached an agreement if no other requirements are specified.
Section 13 of the ECTA regards an electronic signature as valid if it identifies the signatory (or the document’s sender) and indicates his/her approval of the information contained in the document; and the method was reliable and appropriate for the purposes for which the information was communicated. Some electronic signatures require verification by accredited authorities. These electronic signatures are referred to as advanced and have a higher level of credibility
Section 4(4) read with Schedule 2 of the ECTA prohibits the use of electronic signatures when working with contracts for transfer or sale of immovable property (sectional titles and mortgage bonds), wills and codicils, bills of exchange and deeds and long-term leases for a period of more than 20 years.
There is a relationship that exists between the intention of the signatory when they make their mark and whether such mark will be regarded as a signature. When a person signs by making a mark, the intention of the person should be that they intend the mark to be their signature. It was held in Putter v Provincial Insurance Co Ltd and Another 1963 (3) SA 145 (W), that the thumb prints made by a witness were marks made with the intention of identifying the statement upon which her mark appears as hers, therefore the document was signed by her.
In summary, and following the principles deduced from the above-mentioned Acts, a person who is unable to write may sign documents by affixing their mark to the document which they seek to be bound by. This mark will be the way in which the signatory wishes to identify themselves. The mark made should be done in the presence of a witness who has no interest in the matter and can attest to the fact that they witnessed the person sign by the making of a mark. Although electronic signatures are another method that may be used to sign, there are instances wherein an electronic signature may not be used and therefore they are limited in their application.