Problems with the Electronic Commmunications and Transactions Act. Chapter 7

• Published date: 01 January 2005
• Pages: 82-88
• Date: 01 January 2005
• Author: Jason Mikellyn Charles Johnson
• DOI: 10.10520/EJC74029

CHAPTER 7

PROBLEMS WITH THE ELECTRONIC

COMMMUNICATIONS AND TRANSACTIONS ACT

7.1 Problems with the Electronic Communications and Trans-

actions Act in relation to the conclusion of contracts via

electronic means

As previously mentioned in Chapter 3, there are a number of jurists

who regard the enactment of the Electronic Communications and

Transactions Act as being the answer to all problems surrounding

the issue of IT Law in South Africa.

7.1.1 Not all contracts concluded in terms of the Act will be valid

One of the most important myths that must be dispelled as soon as

possible surrounding the Electronic Communications and Trans-

actions Act is the belief (which may be harboured by many — in-

cluding academics) that due to the Act, all contracts concluded

electronically will automatically be valid.

The reason why certain contracts may be invalid is simply because

they may not comply with one of the essential Common Law ele-

ments for the conclusion thereof. Following the enactment of the

Act, it could conceivably happen that the hype surrounding the

new legislation could begin to encroach upon or even overshadow

the Common Law essentialia.

It must not be forgotten that without the essentialia, no valid contact

can come into existence.This is one of the most impor tant aims of

this work — to essentially remind academics and readers alike that

simply because the Electronic Communications and Transactions

Act exists, this does not mean that all contracts are going to be valid

in law. While this may sound elementary and obvious, it is not.

This unfortunate state of affairs — in terms of which the focus on

the Electronic Communications and Transactions Act makes it tempt-

ing to forget that contracts are not valid unless they comply with

the essentialia – is expressed in a surprisingly widespread fashion.

Even academics such as Andrew Rens may be bordering on this

trap by making statements such as

Roman-Dutch Common Law is sufficiently flexible to allow

the creation of valid online contracts and, prior to the enact-

ment of the Act, many thousands of valid contracts were

concluded online.170

82

170 Rens 2003:22-23.