Empowering Inclusion Through Signatures

According to the Disability Toolkit compiled and published by The South African Human Rights Commission (May 2017), South Africa defines disability as “the loss or elimination of opportunities to take part in the life of the community, equitably with others, that is encountered by persons having physical, sensory, psychological, developmental, learning, neurological or other impairments that may be permanent, temporary or episodic in nature, thereby causing activity limitations and participation restriction with the mainstream of society”.

The International Day of Persons with Disabilities (IDPD) is observed annually on December 3rd. IDPD's importance lies in its role in promoting awareness, inclusivity, and empowerment of persons with disabilities. Some of the common categories of disabilities are vision impairment, deaf or hearing impairment, and physical disabilities. The list is not exhaustive; however, for purposes of this article, the focus will be on vision impairment and physical disabilities.

Empowering individuals with vision impairments and physical disabilities to exercise their autonomy and independence is a fundamental human right. One crucial aspect of this empowerment is enabling them to sign legal documents and make informed decisions about their own lives. By providing accessible means of signature and decision-making, we can break down barriers and promote equal participation in society. This not only enhances the dignity and self-worth of individuals with disabilities but also ensures their full inclusion in legal, financial, and social processes.

What is a ‘’signature’’ in South African law?

Under South African law, a signature is broadly defined as any mark or method used by a person to indicate their approval, acceptance, or intention regarding a document or agreement. Here are key points regarding its definition:

Traditionally, South African common law views a signature as any symbol, mark, or writing made by an individual to authenticate a document. This includes handwritten signatures, initials, or even a thumbprint, as long as the intent is clear. In the case of R v Karg 1915 AD 414, "A signature is the name or mark of a person, written or stamped with his authority, to indicate authenticity, approval or execution."

The Electronic Communications and Transactions Act 25 of 2002 Act (ECT Act) provides a comprehensive framework for understanding signatures in the digital age. According to the ECT Act, a signature is any method that identifies the signer and shows their approval of the information in a document. It is commonly handwritten but could include other forms of marking if it fulfils this purpose. Section 1 of the ECT Act defines an electronic signature as "data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature." This broad definition includes typed names, scanned signatures, or digital authentication methods.

What are the requirements for a Valid Signature?

1. Intention to authenticate or validate. In Barnard v Nienaber 1937 AD 161, the court emphasised that a signature must reflect the signer's intention to make the document legally effective.

2. Written or electronic mark: Governed by common law principles, a handwritten signature remains the most widely recognised form of authentication. Electronic Signatures are recognised under the Electronic Communications and Transactions Act, 2002 (ECTA), the National Credit Act, 2005, and the Consumer Protection Act, 2008

3. Executed or adopted by the person or with their authority. In R v Karg 1915 AD 414, the court highlighted the importance of the signature being executed by the individual or their authorised representative that is properly authorised.

4. Associated with a document or record. In Standard Bank of South Africa Ltd v Harksen 2008 (5) SA 232 (C), the court clarified that a signature must be inseparably linked to the document it is intended to authenticate.

5. Identification: Identification refers to the process of verifying the identity of the person signing a document. It ensures that the signature is genuinely that of the person it claims to be.

What is the purpose of a signature?

A signature’s purpose extends across legal, professional, and personal contexts, making it a cornerstone of modern documentation and communication. It bridges personal identity with formal agreements, playing a pivotal role in both everyday interactions and complex legal frameworks.

A signature serves multiple purposes, including authenticating identity, granting authorisation and expressing agreement. It furthermore links the signer to the commitments or declarations contained within the document, establishing personal accountability and responsibility. Many agreements and contracts require a signature to render them legally binding, ensuring the terms are enforceable under applicable laws.                      

What if someone cannot sign a document him/herself?

In South African law, provisions are made for individuals who are unable to sign documents themselves due to physical disabilities, illiteracy, or other constraints. The law ensures that such individuals can still authenticate documents and express their intent in a legally valid manner. Below are the key mechanisms and legal provisions for these situations.

1. Signing with Assistance

If a person cannot physically sign a document, they may make a mark (e.g., a thumbprint or cross). This method is explicitly recognised under South African law for validating documents. The mark must be made in the presence of at least two competent witnesses who are not parties to the document. The witnesses must sign the document to confirm they observed the mark being made.

2. Use of an Authorised Representative

A person who cannot sign a document may authorise someone else to sign on their behalf. This is typically done through a power of attorney, which grants the representative the legal authority to act on their behalf. It is important that the person granting the power of attorney must have the mental capacity to do so and the document must be properly executed to avoid disputes regarding its validity.

3. Digital or Electronic Solutions

For individuals unable to sign physically, digital technology provides alternative methods. Under the Electronic Communications and Transactions Act, 2002 (ECTA), a person can authenticate certain, but not all document/s using an electronic signature. This could involve typing their name, using a digital mark, or applying biometric methods.

4. Assistance in Special Cases

• The Wills Act, 1953 (Section 2) allows a will to be signed by another person at the direction of the testator (the person making the will) if the testator is unable to sign. The process must be observed by two competent witnesses.

• The Deeds Registries Act, 1937, provides similar allowances for individuals unable to sign property-related documents, often requiring the assistance of a commissioner of oaths.

In South African law, the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963) governs procedures for certifying documents and administering oaths, including provisions for individuals who are unable to sign using a conventional signature due to illiteracy, physical disability, or other reasons. Specifically, the Act provides for the use of a mark (such as a thumbprint or a cross) as a legally valid method of signing, subject to certain conditions to ensure authenticity and prevent fraud. A key requirement is that the mark must be made in the presence of a Commissioner of Oaths, who is responsible for verifying the act and ensuring it reflects the individual's intent.

1. Certification by the Commissioner

o The Commissioner of Oaths must certify the document, confirming that the individual made the mark willingly and in their presence.

o The certification typically includes a statement indicating that the signatory was identified and the document was explained to them, ensuring they understood its content.

2. Witnesses

o In some cases, particularly for important legal documents, the mark must be made in the presence of two competent witnesses. These witnesses must also sign the document to verify that they observed the mark being made

To protect the interests of individuals signing with a mark:

• The document must be fully explained to the person making the mark, especially if they are unable to read or write.

• The Commissioner of Oaths must take reasonable steps to confirm the identity of the individual and ensure they understand the significance of the act.

• The mark must be placed in the designated area of the document to prevent any ambiguity about its purpose.

South African law ensures that individuals who cannot sign documents themselves are not excluded from legal processes. Through mechanisms such as the use of marks, authorised representatives, digital signatures, and other accommodations, these individuals can still express their intent and validate agreements in a manner that upholds legal requirements and protects their rights.

Written by: Maret Carroll
Moderated and approved by: Jean-Mari De Beer - le Grange

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