One is often confronted as to whether a witness needs to sign an offer to purchase or sale agreement. There are often two spaces on agreements for a witness to sign in addition to the person signing the agreement (or representing the legal entity entering into the agreement). Is it a legal requirement that a witness sign? It becomes an even more important question especially when the agreement is being signed using an electronic signature because it is hard for a witness to witness someone else signing with an electronic signature. They are often not in the same physical place or in each other’s physical presence.
A witness’s signature can be useful for evidentiary purposes. If a party to the agreement later avers that he/she did not sign, the person who witnessed the party signing van be called to confirm it. The witness can confirm that the specific person signed and that was the signature they made. If there are going to be witnesses:
- the contracting party must sign in the presence of the witness, and
- it must be possible to find the witness later.
For this reason, the name and contact details of the witness must appear on the agreement addition to their signature.
Certain financial institutions, however, insist on the contract of sale to reflect one identifiable witness before it will consider an application by the purchaser for finance.
Conclusion
There is nothing in law that a deed of sale or offer to purchase needs to be witnessed, but it is proposed that same be signed before two competent and identifiable witnesses. In the same vein any interlineation or amendment to the contract or offer to purchase should also be initialled by the contracting parties and the witnesses to indicate any future disputes in this regard.
Allen West
Tonkin Clacey Pretoria
Property Law Consultant
+27 (0)12 346 1278
allen@tcpta.co.za
www.tcpta.co.za
