The ECT Act’s approach takes into account the fact that the validity of contracts is
governed by common law,258 as does the Lesotho Bill.
3.1.7 The sphere of application of the Lesotho Bill
The Bill applies to electronic transactions or electronic communication. 259 Part II and
Part III excludes, subject to the Minister’s regulations, the applicability of the Bill on
creation and execution of wills, negotiable instruments, creation, performance or
enforcement of an indenture, power of attorney or declaration of trust, contract for sale
or disposition of immovable property, document of title, conveyance or transfer of any
interest in immovable property.260 Parties to the contract have discretion to use
electronic communications.261
3.1.8 The sphere of application of the RSA ECT Act
In terms of S4 of the ECT Act, it applies to any electronic transactions on data
messages but excludes the application to the Wills Act,262 Alienation of Land Act,263
Bills of Exchange Act,264 Stamp Duties Act,265 and must not be construed to require
nor prohibit any person to use data messages.266 This Act also does not give validity
to any transaction mentioned in schedule 2 such as an Agreement for alienation of
immovable property, an agreement for the long-term lease of immovable property in
excess of 20 years, the execution, retention and presentation of a will or codicil and
the execution of a bill of exchange.267
There are a number of reasons advanced for the proposed inclusion of electronic wills
in the application of data messages. Papadopoulos advocates for the use of meta
258
Papadopoulos. S. (2010) “Short message services and e-contracting: Jafta v Ezemvelo KZN Wildliife” Obiter
188 at 190.
259 S5 (1) of the Bill.
260 S5 (2) id.
261 S5 (3) id.
262 The Wills Act 7 of 1953; Hofman, J. (2007). “The meaning of the exclusions in section 4 of the Electronic
Communications and Transactions Act 25 of 2002” 124 SALJ 262 at 266; Wood-Bodley, MC. (2004) “Wills, data
messages and the Electronic Communications and Transactions Act” 121 SALJ 526.
263 The Alienation of Land Act 68 of 1981.
264 The Bills of Exchange Act 34 of 1964.
265 The Stamp Duties Act 77 of 1968.
266 S4 (2) ECT Act.
267 S4 read with Schedule 1 where it states that the sections in Column B do not apply to laws in Column A.
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