eSignature Legality in South Africa

Use Cases for eSignatures

Use cases where an SES is typically appropriate include:

• Speedy HR document preparation with pre-approved templates, easy update of each employee, new employee onboarding processes as well as 360 degree view of employee files.
• End user agreements including sales & service terms, new retail account opening documents, invoices, shipment details, user manual, EULAs, policies

Use Cases for Qualified Signatures

Use cases where an AES is typically appropriate include:

• Purchase, procurement and commercial agreements including invoices, trade and payment terms, certificates, NDAs, sales & distribution agreements, order acknowledgements.
• Real estate lease agreements for residential and commercial purpose
• Commercial agreements between corporate entities including NDAs, procurement documents, sales agreements
• The contract of suretyship (General Amendment Act, 1956)
• Signing as a Commissioner of Oaths (Justices of the Peace and Commissioners of Oath Act, 1963

Use Cases that are not appropriate for Electronic Signatures

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.

When a signature is required by law, but the law does not specify the type of signature required, it can only be signed with an advanced electronic signature as defined by ECTA, which is, in practice, equivalent to a QES is Europe. South Africa’s advanced electronic signature is required for:

• Handwritten - contracts for transfer or sale of immovable property, including sectional titles and mortgage bonds (excluded from ECTA)
• Handwritten - deeds and long term leases for a period of more than 20 years, (excluded from ECTA)
• Handwritten - wills and codicils (excluded from ECTA)
• Handwritten - bills of exchange (e.g., cheques) (excluded from ECTA)
• Handwritten - license of intellectual property, IP transfers and employee invention agreements (Patents Act, 1978, the Design Act, 1993, the Trade Marks Act, 1993 and the Copyright Act 1978)

List of Local Trust Service Providers

General Definitions

Simple Electronic Signature (SES)

A Simple Electronic Signature (SES) refers to any electronic data that is logically associated with other electronic data and used by a person to sign. This can include:

• Typing a name at the end of an email,
• Clicking an “I accept” button,
• Pasting a scanned image of a signature, or
• Using a stylus or finger to draw a signature on a touchscreen.

While SES can indicate intent to sign, it lacks advanced identity verification, integrity protection, or security features, making it the least secure type of electronic signature. It is legally valid in many jurisdictions but may not carry strong evidentiary weight without additional context or proof.

Advanced Electronic Signature (AES)

An Advanced Electronic Signature (AES) is a more secure form of electronic signature that must meet the following criteria:

• it is uniquely linked to the signatory
• it is capable of identifying the signatory
• it is created using means that are under the sole control of the signatory, and
• it is linked to the signed data in such a way that any subsequent change in the data is detectable.

AES provides enhanced legal reliability compared to SES and is often supported by multi-factor authentication, encryption, and audit trails.

Qualified Electronic Signature (QES)

A Qualified Electronic Signature (QES) is a type of Advanced Electronic Signature that additionally:

• is created using a qualified signature creation device (such as a secure token or smart card); and
• is backed by a qualified digital certificate issued by a recognized or accredited trust service provider.

QES provides the highest level of trust and legal assurance, and in many jurisdictions (like the EU under eIDAS, India IT Act, etc), it holds the same legal status as a handwritten signature.

Digital Signature

A Digital Signature is a specific technological implementation of an electronic signature that uses asymmetric cryptography. It allows a verifier to:

• confirm that the signature was created using the private key corresponding to the signer’s public key; and
• ensure that the signed message or document has not been altered after signing.

Digital signatures are the underlying cryptographic mechanism used in both AES and QES. They offer strong security guarantees such as authenticity, integrity, and non-repudiation and are often implemented through Public Key Infrastructure (PKI) systems.

External Resources