The development and application of the signature as an identification method in the South African law

Abstract

Whilst a signature is not a formality in our law in order for a valid and binding transaction to be concluded, it is invariably appended to identify the signatory, affirm the signatory's intention to append his/her signature and in so doing bind the signatory to the contents of the document. South African law has rarely found it necessary to define what is meant by a signature, never legislating it but rather dealing with it on an ad hoc basis. New signature methods are dealt with analogously with the ways in which traditional manuscript signatures have previously been treated by our law. Section A deals with the traditional manuscript signature with regards to the form it assumes as well as the functions it must fulfil. The uses of the traditional signature and its areas of application are identified. It is established that a signature does not have to be a signatory's name but can take the from of a mark, be it a seal, rubber stamp and so on, as long as it is made with the intention of signifying assent to the document. The traditional manuscript signature has played an extensive role in banking law and an extensive discussion is thus necessary. As our society becomes less reliant on paper, businesses have been slow to embrace electronic commerce which in part is due to the perception that electronic commercial transactions are not secure. However, the increasingly widespread use of electronic communications demands a reassessment of what constitutes a valid signature. Section B exammes the forms of the electronic signature. An orientation of such forms is necessary to provide the reader with a general introduction into what constitutes an electronic signature before embarking on a lengthy discussion of each form, namely PINs and passwords, biometric identification and digital signatures. PINs and passwords serve to identify and bind the signatory and are thus deemed to be electronic signatures. A heavier reliance is thus placed on the functions that they perform. Biometric identification, as a form of electronic signature, refers to the automatic identification of an individual based on his/her physiological or behavioural traits, in an electronic environment. Biometrics is a recent technological advancement which is gaining more impetus daily. Each biometric technology is discussed, including fingerprinting, hand geometry and keystroke dynamics, as well as their performance as a technology and their respective applications. It is felt that these technologies have the ability to impinge on a person's basic fundamental rights. This latter constitutional aspect thus forms an integral part of the discussion and analysis. Digital signatures provide a secure means of concluding transactions over the Internet, while ensuring the integrity and authenticity of the information to which they correspond. It serves the same purpose as a traditional signature in that it allows the recipient of a digitally signed communication to determine whether the communication was changed after it was digitally signed. Thus the recipient knows the communication came from the sender albeit that it takes a different form. As it is also a relatively new technology, a detailed discussion is expedient and a multidisciplinary approach has to be adopted. The way in which a digital signature operates, as well as where it comes from ( cryptography) is discussed to assist the reader in understanding the difficult technological concepts. The areas of application areas are extensively investigated as South Africa has no legislation regulating electronic commerce and thus has to rely on existing legislation. An investigation is made into how these laws (which relate to the physical world) can be used to regulate cyberspace. Thus the development of the law relating to traditional manuscript signatures and other forms of signature, used for hard copy documents, is examined, tracing the move in judicial and legislative thinking from an approach that basically placed emphasis on form to one which is more reliant on the function which a signature performs. Vlll Section C deals with an examination of electronic signature law as a vehicle for advancing electronic commerce, already applied in various foreign countries. Herein the viability of electronic commerce legislation in South Africa is explored, and the approach which should be adopted in South Africa in order to ensure that it does not stifle e-commerce is analysed. In March 2002, the South African legislature introduced the Electronic Communications and Transaction Bill of 2002, which attempts to regulate such issues. Mention is made of the Bill throughout this dissertation and it is foreseen that such reference is necessary as it is in all likelihood to be passed as legislation, despite contentious objections. In this dissertation the conclusion is reached that a signature, as a legal concept, bears no relationship to the popular understanding of a name on paper in the signatory's own handwriting. A signature is not a 'thing', but a process. If that process produces sufficient evidence that a person has adopted a document as his/her own, and that document before the court is the same document to which the process was applied, then the document has been signed in legal terms. It is irrelevant whether the result of the process is a visible name, symbol, or a logical alteration of information content, as long as it provides sufficient evidence of the transaction .