In terms of section 6 of the General Law Amendment Act No. 50 of 1956 (“the GLA”), which regulates the formalities in respect of contracts of suretyships, no contract or agreement of suretyship entered into after the commencement of the GLA, shall be valid, unless the terms thereof are embodied in a written document signed by or on behalf of the surety.

In essence, section 6 of the GLA requires that a suretyship agreement must be reduced to writing and be signed by or on behalf of the surety to be legally enforceable.

However, section 13(1) of the Electronic Communications and Transactions Act No. 25 of 2002 (“the ECTA”) states as follows:

“Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used.”

This section makes it clear that if a signature is required by law, such as suretyships in terms of section 6 of the GLA, only an “advanced electronic signature” may be used if the law does not specify the type of signature and if it is executed electronically. Therefore, where a suretyship agreement is incorporated in a data message, the signature must meet the requirements for an advanced electronic signature.

The ECTA defines an advanced electronic signature as “…an electronic signature which results from a process which has been accredited by the Authority as provided for in section 37” and a data message as data generated, sent, received or stored by electronic means such as a deed of suretyship that was transmitted via email.

Section 37 of the ECTA empowers the South African Accreditation Authority (“SAAA”) to accredit authentication products and services that support the use of advanced electronic signatures. Accreditation must be applied for formally in the prescribed manner and accompanied by the applicable non-refundable fee. It is also an offence for any person or entity to falsely represent that their products or services are accredited by the SAAA.

In terms of section 38, the SAAA may only grant accreditation if it is satisfied that the electronic signature concerned meets certain minimum requirements. These include, inter alia, that the electronic signature:

  • is uniquely linked to the user;
  • is capable of identifying the user;
  • is created using methods that are under the sole control of the user;
  • is linked to the data or data message in such a way that any alteration to the data can be detected; and
  • is based on face-to-face identification of the user.

Therefore, an electronic signature on a Deed of Suretyship, such as an image of a manuscript signature etc. that was appended electronically and transmitted electronically e.g. via email will not constitute an advanced electronic signature, if it is neither registered with an accredited authority of if it does not meet the rest of the requirements as set out in the ECTA.

This was reiterated in the case of Massbuild (Pty) Ltd v Tikon Construction CC and Another 2022 JDR 0901 (GJ), where the Court held that, taking into consideration section 6 of the GLA and section 13 of the ECTA, where a suretyship is embodied/incorporated in a data message, the signature must meet the requirements for an advanced electronic signature to satisfy the statutory requirements. The court held that the agreement constituted a data message and was therefore subject to the requirement of an advanced electronic signature in terms of the ECTA. As the signature did not meet the requirements in terms of section 13 of the ECTA, the suretyship agreement was declared invalid and unenforceable.

However, in the matter of Momentum Metropolitan Life Limited v Lavender Hill Trading 544 CC and Another (19204/23) [2025] ZAWCHC 99 (11 March 2025), the court upheld a deed of suretyship signed electronically without an advanced electronic signature. However, same was upheld on procedural grounds, as the second respondent failed to raise this defence in her initial plea and affidavit opposing summary judgement and was only raised at the hearing and the fact that the second respondent has admitted in her plea to having bound herself as a surety in favour of the applicant.

The aforesaid matters highlight the importance of complying with statutory formalities when concluding suretyship agreements electronically, especially in our current digital age where electronic signatures and the transmission of contracts via email and other electronic means have become the norm in business. Businesses and individuals must therefore ensure full compliance with the requirements of the ECTA and the GLA to avoid the risk of a suretyship agreement being declared invalid, which could leave a creditor without any recourse against the surety.

If you are uncertain whether your suretyship agreements or any other electronically signed contracts have been validly concluded, or whether an electronic signature will suffice in your specific circumstances, please feel free to contact Pagel Schulenburg Inc. Our team will gladly advise you on the validity and enforceability of your current and future agreements to ensure that your legal interests remain fully protected.