In light of the current COVID-19 pandemic, which has led to increased remote working, there has been an increased need for companies to adopt the use of electronic signatures to authorise agreements and instructions. What follows is a brief overview of the law and practice of electronic signatures under Botswana law.
Are electronic signatures legally effective?
Yes. In terms of the Electronic Transactions and Communications Act [CAP 43:12] (the “Act”) an electronic signature shall not be denied legal effect, validity, or enforcement solely on the grounds that it is in electronic form. This means that an electronic signature is legal and binding.
Where any law requires the signature of a person, that requirement shall be met by the use of an electronic signature provided that (a) there is a method to identify and indicate the signatory’s approval; and (b) in the circumstances, the electronic signature used is as reliable as was appropriate for the intended purposes.
What are the various forms of electronic signatures?
The Act distinguishes between an “electronic signature” and “secure electronic signature”.
The Act defines an “electronic signature” as “data in electronic form attached to or logically subjoined to an electronic communication, and which can be used to identify the signatory (method of authentication) and indicate consent for the information contained in the said communication”.
On the other hand, a “secure electronic signature” is an electronic signature authenticated and recognised by products or services accredited by the Botswana Communications Regulatory Authority.
What are the requirements for electronic signature?
An electronic signature is reliable if:
a. the signature creation data is linked to the signatory and to no other person;
b. the signature creation data was under the control of the signatory and no other person; and
c. any alteration made, after the time of signing, to the electronic signature or the information to which it relates will be detectable.
What are the restrictions on electronic signatures?
In terms of the Act the following transactions cannot be created or concluded by electronic means:
a. the creation or execution of a will;
b. the creation, performance or enforcement of an indenture, declaration of trust or power of attorney;
c. any contract for the sale or disposition of immovable property, or the sale or disposition of any interest in such property; and
d. the transfer or conveyance of any immovable property or the transfer or conveyance of interest in such property.
How can electronic signatures be used?
Where the parties to an agreement have agreed to use electronic signatures such parties may agree to use any method of signing that they deem appropriate.
What are some examples of an electronic signature?
By way of illustration, any of the following may constitute an electronic signature:
a. a scan or photograph of the signature pages of a document sent by email;
b. clicking ‘I accept’ on a website;
c. signing an electronic document using an electronic stylus; and
d. using e-signing software or services to sign an electronic document.
Can electronic signatures be used for cross-border transactions?
Yes. The geographic location where an electronic signature was issued or used does not affect its validity.
An electronic signature created or used outside Botswana shall have the same legal effect in Botswana as an electronic signature created or used in Botswana if it offers a substantially equivalent level of reliability. Reliability shall be determined with reference to recognised international standards and to any other relevant factors.
For more information on electronic signatures and electronic communications please contact Senior Associate Obakeng Lebotse and Associate Gotsilemotho Phuduhudu at obakeng@bookbinderlaw.co.bw and gotsilemotho@bookbinderlaw.co.bw.