South Africa is widely recognized as the economic hub of Africa, with a vibrant and well-established post-apartheid democracy. One of the most important aspects of this country, is its free-trade economy, which exudes a positive and sustainable vision for the future.
Building forth on this, the South African Legislature recently introduced legislation that effects both legal recognition and protection of electronic transactions, as well as the administration, management, use and allocation of all ". CO.ZA" domain names.
The new Act (Electronic Communications and Transactions Act 25 of 2002, hereinafter "the Act"), which came into operation on 30 August 2002 applies to, inter alia, the following important issues :
- Consumer protection
- Safe-harbour protection for ISP’s
- Recognition of data messages and records as evidence in legal proceedings
- Legality of electronically concluded contracts, including time, date and place of conclusion
- Introduction of certain statutory criminal offences pertaining to information systems and handling
Consumer Protection is undoubtedly one of the issues, which enjoys a lot of global attention in e-commerce. Where members of the Internet community are interested in doing business with any e-commerce entity, they primarily require a reliable measure of security before online business opportunities are seriously considered.
Doing business in South Africa - online - is no exception.
Chapter 7 of the Act addresses this important business need that all consumers have for credible, secure and enforceable e-commerce opportunities, and also provides important yet practical outcomes in the event of such transactions going sour.
For example, Section 47 states that the protection provided to consumers in this chapter of the Act applies, irrespective of the legal system applicable to the agreement in casu.
Although it creates an open question as to what level this section may be practically enforced, the section nonetheless encourages and protects consumers wishing to do online business in South Africa. It is a rather unique provision, which seems to underpin the South African Government’s commitment to ensuring that both local and foreign investors’ rights are protected while doing business in South Africa.
The Parties are naturally also at liberty to agree on a jurisdiction of choice but the underlying message to foreign investors is made clear by this section : Your transaction is protected by law in South Africa.
Section 48 states that any provision in an agreement exluding any rights provided for in terms of consumer protection, is null and void. It is important to take note here of the key word – ‘provision’. It postulates that the contract in its entirety would still be fully enforceable in almost all cases, save for any such void provisions therein.
Should it become necessary, Section 49 provides that a consumer may also lodge a complaint with the local Consumer Affairs Committee in respect of non-compliance. This specific provision is ideal for consumers, as it affords an alternative avenue to dispute resolution, leaving discretionary room for legal action only as a last resort.
The importance of this Act for the South African online economy , its scope and application can’t be stressed enough. It removes many uncertainties and affords consumers irrevocable rights and privileges. Other issues of this Act will be discussed in publications to follow. Any correspondence about this topic can be mailed direct to Michael Maritz Attorneys at Maritz@justice.com.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.