would apply only if parties have not agreed otherwise. It is submitted that the deviation
contradicts the Model Law’s transposition of the traditional ‘in writing’ requirement to
electronic contracts which are mandated statutorily to be reduced into writing. It is
submitted that section 6 should be struck out as section 11 is a properly placed
provision to vary part III of the Bill.
3.2.12 Legal recognition of data messages in the Lesotho Bill
Section 7(1) provides that a data message shall not be denied legal effect, validity and
enforceability solely on the ground that it is wholly or partly in the form of an electronic
communication.337 Section 7(2) validates a declaration of will (intent) in the form of an
electronic communication.
338
3.2.13 Legal recognition of data messages in the RSA ECT Act
Section 11(1) reads that information is not without legal force and effect merely on the
grounds that it is wholly or partly in the form of a data message.339 In terms of section
24 of the ECT Act, an expression of intent or other statement can constitute an offer
and acceptance segments of contract formation, the expression can be made through
other means other than electronic signature.340
The application of functional equivalence principle is confined to data messages, as
the functional equivalent to messages on paper,341 in terms of the legal recognition of
data messages provisions of the Bill and the ECT Act. Buys notes that the provision
on legal certainty of data messages do not override mandatory provisions in South
African law.342 It is observed that a data message must be functionally equivalent to
a paper counterpart to satisfy these mandatory requirements.
337
S7 (1) of the Bill.
S7 (2) of the Bill see further discussion on incorporation by reference in para 3.7.1.
339 S11 (1) ECT Act.
340 Pistorius (2004: 568 at 573) see further discussion on incorporation by reference in para 3.7.2; Stoop, P.
(2009) “SMS and E-mail contracts: Jafta v Ezemvelo KZN Wildlife.” 21 SA Merc LJ 110 at 118.
341 Van der Merwe (2008: 146); Papadopoulos et al (2012: 46).
342 Buys (2004: 84).
338
42