information in any form.289 The definition of an electronic communication in the ECT
Act is couched with similar words as in the Bill.290
The common ground between the Bill and the ECT Act is that a data message is a
stored or recorded message available for subsequent reference. As per Van der
Merwe, the Model Law’s requirement is stricter than the common law because if a data
message is so ephemeral that it cannot be saved for subsequent reference, it cannot
provide certainty.291
It was mentioned that the Bill applies to electronic communications pursuant to section
5 thereof.292 It is argued that data messages form the crux for the existence of the Bill,
without which electronic transactions provisions, including section 5 on the sphere of
application, cannot be afforded legal recognition. Paradoxically, the phrase electronic
communication is used instead of a data message, except for reference in section 7
only which gives legal validity to data messages. This is a bizarre legal dichotomy that
frustrates the intention of the legislature, and defeats the purpose for which the Bill
was drafted in the first place, to wit, to enable and facilitate the use of electronic
transactions. This terminological inconsistency constitutes a grave irregularity which
produces an unforeseen and undesired interpretation difficulties, which were not
initially contemplated by the drafters, being that the Bill should apply to data
messages, and not to electronic communication in general.
Although electronic communication is a communication by way of a data message, it
is argued, on the strength of the case of Jafta v Ezemvelo KZN Wildlife,293 where the
court laid down the critical common elements for the definition of data messages and
electronic communication, being the capability to be generated, stored, sent, received,
and transmitted, that the two terms are distinct, for the very reason that the court
outlined the similarities. It is not every electronic communication that constitutes a
data message. Electronic communication is an umbrella term the sub-set of which is
289
S2 ECT Act.
S2 ECT Act states that electronic communication means a communication by means of data messages.
291 Van der Merwe et al (2008: 165).
292 S5 of the Bill.
293 Jafta v Ezemvelo KZN Wildlife 2008 (10) BBLR 954.
290
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