Legality of eSignatures in Eswatini

Background

Eswatini and the world are riding the wave of digital transformation, with electronic signatures leading the charge. This has been the sleek and eco-friendly way of authenticating documents that’s picking up speed every day.

For successful adoption in Eswatini, selecting an electronic signature tool that aligns with the nation’s legal stipulations, especially the Electronic Communications and Transactions Act, is crucial. This ensures that your digital signature holds the same weight as a handwritten one. Some paperwork may still require a wet-ink signature, so consulting a legal expert is prudent.

Security is the name of the game when it comes to eSignatures. You need a secure service with data encryption, identity checks, and audit trails to keep breaches at bay and ensure the authenticity of your documents. For instance, BoldSign offers these imperative security features and complies with legal and security protocols.

For savvy businesses in Eswatini, it’s all about blending compliance, top-notch security, and ease of use when bringing electronic signatures into the fold. This smart move not only catapults your efficiency but also wraps your business dealings in a blanket of security. Get ready to power up your productivity and safeguard your transactions with the magic of eSignatures.

Overview of regulatory framework

The principal Act governing the use of electronic signatures and electronic transactions in Eswatini, initially referred to as Swaziland, is the Electronic Communications and Transactions Act¹.

Under the Act, a contract can be concluded electronically and shall not be found invalid solely on the grounds that it was completed through electronic means². However, it is worth noting that in doing so, the parties usually need to give their consent to such electronic transactions. Consent, in this case, may be inferred from the conduct³.

Regarding proving an electronic signature, it may be done in any manner, including by showing that a procedure existed through which it is necessary for a person, so as to proceed further with the transaction, to have executed a symbol or security procedure for verification of the electronic record being that of the person⁴.

The Act, as read with the Electronic Records (Evidence) Act, 2009⁵, categorizes these signatures into:

Standard Electronic Signatures
Secure Electronic Signatures

A standard electronic signature is explained to be any data in electronic form, including sounds, symbols, or processes linked to or logically associated with an electronic communication adopted to identify a party and to indicate approval of the information contained in such communication⁶.

A secure electronic signature⁷ is an electronic signature created and can be verified through an application of security procedure or a combination of security procedures that ensures the signature is:

Exclusively linked to the signature owner.
Generated with a secure electronic signature creation device under the sole control of the signer.
Enables the identification of the Signer through a Qualified Electronic Certificate.
Enables detection of whether signed electronic data has been altered or not after the signature is applied.

Uniquely linked to the signer

A secure electronic signature must be uniquely connected to the person using it. The signature must be uniquely created with methods only the signer can access, like a private key and confidential information, to verify their identity. 

Use and incorporation remain in their sole control

The person using the secure electronic signature must have sole control over the means of creating the signature. Typically, this requires managing a key pair or two-factor authentication, with the signer exclusively holding the private key to prevent signature forgery.

Identify the person using the technological process

The process used to create the signature must be capable of identifying the person signing. This may include using a biometric signature, a personal identification number (PIN), an email address, or even a company registration number.

Track down any alterations made after signing

It is essential to preserve the authenticity of the signed document. Modifications made to the document post-signature should be clearly identifiable. This is commonly accomplished through an audit trail. Audit trails record the signer’s IP address, timestamps of key signing events, and location, providing proof of identity, timing, and signature place.

Under the Evidence Act, to meet the best evidence requirement for an electronic record, one must demonstrate the reliability of the electronic record system used to record or store data . Alternatively, compliance is achieved if the electronic record includes a secure electronic signature that was applied at the time the electronic record was initially created in its final format, and this signature can confirm that the electronic record has remained unaltered since then⁸.

Additionally, it is worth noting that in the construing of a signer, a secure electronic signature shall be deemed to have been made and used for said signature by the signer unless the contrary is proven⁹.

Summary

(Under the Electronic Communications and Transactions Act (Act No. 3 Of 2022) and Electronic Records (Evidence) Act, 2009 Act 6 of 2009)

Type of eSignature	Unique features	Validity standards
Standard electronic signature	N/A	Dependent on evidentiary value.
Secure electronic signature	Uniquely linked to the signer. Able to identify the signer. Able to identify any post-signing alteration. Use and incorporation in the signatories' sole control.	Bears the validity value of a handwritten signature.

The scope and limitations of eSignature transactions

The use of electronic signatures in transactions is not uniformly recognized as legally binding for the completion of documents. Therefore, there are particular categories of transactions and applications where electronic signatures are appropriate, and in some, they are not. What follows is a detailed examination of this issue, along with a summary table outlining the relevant transactions.

Documents that can be signed

Electronic signatures can be employed to affix signatures and provide countersignatures on a diverse array of documents, such as:

Human resources
Procurement
Internal correspondence
Non-disclosure agreements
Software license agreements
Insurance industry
Educational field. etc.

Unique uses of secure electronic signature

Secure electronic signatures are granted unique consideration as to use; the signature is the only electronic signature permitted to be used in place of a handwritten signature in¹⁰:

Notarizations
Acknowledgements
Certification of documents

Additionally, in place of a wet-ink signature, a secure electronic signature is deemed to be valid when used in circumstances where a signature is required by law. The secure electronic signature, in this case, may take any method as agreed upon by the parties to an electronic transaction¹¹.

Exempted transaction

In limiting the scope of electronic transactions, the Act decrees that the following shall not be completed electronically.¹²

Negotiable instruments
Creation or execution of a will
Conveyancing (sale and disposition of immovable property rights or interests)
Documents of title
Creation, performance, or enforcement of an indenture
Declaration of trust or power of attorney excluding constructive and resulting trust

Summary Analysis

Permissible Transactions		Exempted Transactions
Any type of eSignature	Secure eSignature	Exempted Transactions
Human resources Procurement Internal correspondence Non-disclosure agreements Software license agreements Insurance industry Educational field, etc.	Where a signature is required by law Notarizations Acknowledgments Certification of documents	Negotiable instruments Creation or execution of a will Conveyancing (sale and disposition of immovable property rights or interests) Documents of title Creation, performance, or enforcement of an indenture Declaration of trust or power of attorney excluding constructive and resulting trust

To ensure the validity of an electronic signature, it’s recommended to implement the following best practices along with adherence to all relevant legal standards:

Verify the identity of the person signing and, when it involves business transactions, ensure that the person is properly authorized to represent the company when applying for their signature.
Obtain explicit consent from the signer, which could be included within the contract or through a separate agreement, to establish their intent to use the chosen eSignature for the particular document.
Protect the document from any alterations post-signature application.
Maintain a detailed record of the signing process, documenting each action taken by the signer.

How does BoldSign help

The following elements available within BoldSign ensure compliance with the Eswatini eSignature laws:

Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer’s email address. This ensures that the document is only accessed by the intended signer and cannot be tampered with.
Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds another layer of security to the signing process.
Audit trail: The IP address of the signer and timestamps for all significant events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when, and where.
Digital signature: The final document is digitally signed with an AATL-compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
Consent: Signers are asked to confirm their intent to sign electronically and informed that they could opt out. This ensures that the signer is aware of the implications of signing electronically and has given their consent.
Custom terms: Get your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.

Disclaimer:The information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.

However, Syncfusion’s officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations are subject to frequent changes, and the information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied, or statutory, including representations, guarantees, or warranties of merchantability, fitness for a particular purpose, or accuracy.

Syncfusion makes no warranties of any kind, including but not limited to the information or the product, whether express, implied, statutory, or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations, and warranties, whether express, implied, or statutory, with respect to this information, without limitation of any implied warranty of merchantability, fitness for a particular purpose, accuracy, or currentness of this information.

Syncfusion nor its officers, directors, stockholders, employees, affiliates, attorneys, accountants, or agents shall be liable for indemnification, nor does this create an express or implied, contractual or statutory, equitable or otherwise, under this Agreement. The officers, directors, stockholders, affiliates, attorneys, accountants, or agents will not have any liability in any form.

¹Electronic Communications and Transactions Act (Act No. 3 Of 2022) ² Ibid. S. 5 ³Ibid. S. 3 (4) & (5) ⁴ Electronic Records (Evidence) Act, 2009 Act 6 of 2009. S. 8 ⁵Ibid. S. 2 ⁶ Electronic Communications and Transactions Act, 2022, S. 2 ⁷ Ibid ⁸ Electronic Records (Evidence) Act, 2009 Act 6 of 2009. S. 7 ⁹ Electronic Communications and Transactions Act (Act No. 3 Of 2022) – S. 16 (2) ¹⁰ Ibid. S. 20 ¹¹ Ibid S. 7 ¹²Electronic Communications and Transactions Act (Act No. 3 Of 2022) – S. 3 (3)

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Google Integration, 25 free sends, dashboard, Signature font options, App is very responsive / fast, Emails between sender and signer are good, Audit trail is very helpful, No account needed for signer is great, Mobile experience is good for signer.

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Edgewood Solutions

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We’re using BoldSign successfully in our b2b SaaS platform - as it’s embedded to allow seasonal farm workers and their agribusiness employers to e-sign their employment onboarding documents for the first time. It’s part of the total solution saving the workers and HR managers 50% more time compared to their traditional pen/paper manual process.

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Croft

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