entailing sufficient information to enable the offeree to unequivocally accept it. 205 The
requirements of contractual capacity, possibility of performance and lawfulness in the
internet contracts should align with common law requirements as with the traditional
paper-based contracts in order to be legally enforceable.206
The courts have recently dealt with cases of electronic contracts as discussed by
Papadopoulos.207 In the case of Council for Scientific and Industrial Research v
Fijen,208 the email communication was held to constitute a valid letter of resignation,
and data and SMS messages were held to be legally recognised form of conducting
acts such as electronic contracts as evidenced in Wellness International Network v
MV Navigator, 209 Jafta v Ezemvelo KZN Wildlife,210 Mafika v SABC.211
2.4.3.2 Functional equivalence approach
The functional equivalence principle stipulates that information shall not be denied
legal effect, validity or enforceability solely on the grounds that it is in the form of a
data message.212 Article 5 which deals with the legal recognition of data messages,
stipulates that where a data message is used in the formation of a contract, that
contract shall not be denied validity or enforceability on the sole ground that a data
message was used for that purpose.213
Functional equivalence approach was
introduced by the Model Law to transpose the traditional legal requirements, such as
writing and signature, into the electronic contracts with the view to according electronic
contracts the same legal recognition, validity and enforceability as paper-based
contracts.214
2.4.3.3 The Legal recognition of data messages
Article 5 of Model Law is to the effect that information shall not be denied legal effect,
force and enforceability solely on the grounds that it is in the form of a data message.
205
Papadopoulos et al (2012: 45).
Jason (2004: 75).
207 Papadopoulos et al (2012: 47).
208 Council for Scientific and Industrial Research v Fijen CSIR 1996 (2) SA 379.
209 Wellness International Network v MV Navigator 2004 (5) SA 10.
210 Jafta v Ezemvelo KZN Wildlife 2008 (10) BBLR 945.
211 Mafika v The SABC-Unreprted Labour Court case No.J 700/08.
212 Gregory (2003-2004: 275 at 276).
213 Gregory (2003-2004: 275 at 278).
214 Pistorius (2002: 129 at 135).
206
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