sent or generated prior to storage, if any, but does not include an intermediary.307 An
intermediary means a person who, on behalf of another person, whether as an agent
or not, sends receives or stores a particular data message or provides other services
with respect to that data message.308
The definitions of the above terms are also identical in both instances. The definition
of an addressee and originator signifies that data messages generated automatically
by a computer without direct human intervention should be regarded as originating
from the legal entity on behalf of which the computer is operated,309 and as such, it is
covered under the definitions, as parties may express their intention about offer and
acceptance without human intervention.310 Thus, parties who engage in electronic
automatic response may not raise a defence that an electronic agent exceeded its
mandate.311 Intermediaries only receive, transmit or store messages on behalf of
another person.312
These concepts portray identical content to the Model Law’s
definitions of the terms. They should be retained.
3.2.9 An automated transaction in the Lesotho Bill and RSA ECT Act
The Lesotho Bill does not define an automated transaction. It defines an automated
message system as a pre-programmed system, or other automated system used to
initiate an action, or respond to electronic communication or generate other
performances in whole or in part without review or intervention by a party. 313
In the RSA ECT Act, an automated transaction means an electronic transaction
concluded or performed in whole or in part by means of a data message in which
conduct or data messages of one or both parties are not reviewed by a natural person
in the ordinary course of such natural person’s business or employment.314 An
electronic agent means a computer program, or an electronic or other automated
307
S1 id.
S1 id.
309 Pistorius (2002: 129 at 140).
310 Glatt, C. (1998) “Comparative issues in the formation of electronic contracts”1/6 Int’l SAJIC 34.
311 Rens , A. (2003) “Approach with caution” June De Rebus 22 at 25.
312 Pistorius (2002: 129 at 141).
313 S2 of the Bill.
314 S1 ECT Act.
308
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