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LML4810 FEEDBACK ON ASSIGNMENT 01 2021:ECP AND SUPER SEMESTER
QUESTION 1
The year 2022 will mark the twentieth anniversary since the promulgation of
South Africa’s legislation regulating electronic commerce (e-commerce). The
Act was promulgated to address challenges posed by the advent of e-commerce
on traditional ways of conducting business. South Africa’s e-commerce
landscape is described as ‘lagging behind’ or as contributing ‘1% to the retail
space’. In addition to the above the 2020 Covid – 19 pandemic has been set to
have accelerated the Fourth Industrial Revolution (4IR) with its disruptive
technologies such as Artificial Intelligence (AI) and Internet of Things (IoT).
These new developments continue to widen existing gaps in the law which have
to an extent failed to address the challenges posed by e-commerce.
Write a detailed essay on whether the e-commerce legislation in South Africa
has achieved its objectives. Your answer should address the following
questions:
1.1 Define the term e-commerce. In your answer, identify and briefly discuss the
subsets (types) of e-commerce. (5)
Electronic commerce1 is defined broadly as “the use of electronic networks to
exchange information, products, services and payments for commercial and
communication purposes between individuals (consumers) and businesses, between
businesses themselves, between individuals themselves, within governments or
between the public and government and, last between business and government”. 2
According to the Green paper3 the following are the subsets (types) of e-commerce:
Business to business (B2B): focusing on integrated values chains supplier and
customer base; Business to consumer (B2C): focusing on online shopping;
Government to business (G2B): focusing on e-procurement; Government to consumer
(G2C): focusing on services and programs like government online.
NB: Two marks allocated for defining the term e-commerce. Three marks were
allocated for the subsets. However, if sources were not provided on footnotes
maximum mark allocation is three. Also note where the footnote number or superscript
is located.
1 Hereafter referred to as ‘e-commerce’.
2 Department of Communications (Republic of South Africa) Green Paper on Electronic Commerce:
Making it your own business (2000) 9. Hereafter ‘Green paper’. Also see definitions in the following
prescribed articles: Ndonga D “E-Commerce in Africa: Challenges and Solutions” (2012) 5 African
Journal of Legal Studies 243-268; Ewelukwa N “Africa ready for electronic commerce: A critical
appraisal of the legal frameworks for ecommerce in Africa” (2011) 13 3-4 European Journal of Law
Reform 550-576; and Jobodwana ZN “E-Commerce and Mobile Commerce in South Africa: Regulatory
Challenges” (2009) 4 4 Journal of International Commercial Law and Technology 287-298.
3 Green paper at 9.
1
, 1.2. Identify and discuss two legal challenges that e-commerce poses on
existing laws. Also identify the law that regulates e-commerce in South Africa,
and provisions in that law that seeks to address the challenges you have
highlighted. (10)
The following are the challenges posed by e-commerce as noted in the Green paper:
Taxation;4 Intellectual-property (IP) protection;5 Consumer protection;6 Domain
naming;7 Electronic-payment mechanisms.8 Eiselen9 highlights the following as
perceived legal uncertainties: validity of the agreement; offer and acceptance;
automated contracts and agency; time and place of contracting; formalities;
incorporation of standard terms; jurisdiction; and applicable law. Other challenges
include privacy concerns; security issues; liability of Internet service providers (ISP) et
cetera.10
The Electronic Communication and Transactions Act11 is South Africa’s law regulating
e-commerce. The challenges or legal certainties listed above were addressed in the
following chapters in the ECTA: chapter 3 covers the issue of facilitating electronic
transactions, and it is divided into two parts namely: part 1 which covers the legal
requirements of data messages;12 and part 2 communication of data message.13 In
creating public confidence in electronic transacting, the ECTA also covers consumer
protection issues which are covered in chapter 7.14
NB: Students were supposed to choose two challenges, provide a summary of each
(5 marks); identifying the ECTA (1 mark); and identifying provisions in the ECTA that
addressed the challenges you have chosen (4 marks). Students received less marks
for only listing a challenge(s) and section numbers.
4 See in particular pages 22-24 of the Green paper. Refer to learning unit 8.
5 Ibid at 35-39. See learning unit 5; 6; and 7 on IP issues and sources you needed to apply if you
have chosen IP as a challenge.
6 Ibid at 47-50. Refer to learning unit 4.
7 Ibid at 59-61. Refer to learning unit 7.
8 Ibid at 63-65. Refer to learning unit 3.
9 Eiselen ‘E-Commerce’ in Information and Communications Technology (2008) 144; also see
Green paper at 17-20. Note should be taken that most of these legal uncertainties have to do
with contracting online or e-contracts.
10 Ibid Green paper. Other challenges highlighted in sources noted in note 2 above.
11 Act 25 of 2002. Hereafter referred to as ‘the ECTA’.
12 See sections 11-20 ECTA. For more issues covered in these provisions see learning unit 3.
13 See sections 21-26 of the ECTA which covers: formation and validity of agreements (section 22);
and time and place of communications dispatch and receipt (section 23) among others. Also see
Jafta v Ezemvelo KZN Wildlife [2008] 10 BLLR 954 (LC).
14 See sections 42-49 of the ECTA. For a discussion on consumer protection issues see: Eiselen
note 9 at 179-191. Also see learning unit 4 for the prescribed material on this issue.
2
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