The difference between SES, AES and QES

eSignature Legality Summary

Under South African law, a written signature is not necessarily required for a valid contract – contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document. Section 13(2) of The Electronic Communications and Transactions Act (ECTA) specifically confirms that contracts cannot be denied enforceability merely because they are concluded electronically or through data messages. To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under section 15 of ECTA, to support the existence, authenticity and valid acceptance of a contract.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES is typically appropriate include:

• HR documents, such as employment contracts, benefits paperwork and other new employee onboarding processes
• commercial agreements between corporate entities, including NDAs, procurement documents, sales agreements
• consumer agreements, including new retail account opening documents
• real estate documents, including lease agreements for residential and commercial real estate not lasting for a period of more than 20 years

Use Cases for Other Types of Electronic Signature (e.g. Digital Signature, AES[1], QES[2])

Use cases where an electronic signature other than SES may be required include:

• 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:
  • A 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 Typically Appropriate for Electronic Signatures or Digital Transaction Management

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.

• 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)

[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.