3.2.14 The ‘in writing’ requirement in the Lesotho Bill
Section 8(1) of the Bill commands that where a rule of law requires information to be
in writing or provides consequences if it is not, an electronic communication satisfies
the requirement, if the information contained therein is accessible for subsequent
reference. Section 8(2) reads that sub-section 8(1) applies whether the requirement
therein is in the form of an obligation or whether the law simply provides consequences
for the information not in writing.343
3.2.15 The ‘in writing’ requirement in the RSA ECT Act
3.2.15.1 Introductory overview
The ECT Act provides that a requirement in law that a document or information must
be in writing is met if the document or information is in the form of a data message and
accessible in a manner usable for subsequent reference.344
The main functions served by a written document are, inter alia, to provide that a
document is legible, remains unaltered over time, can be reproduced so that each
party would hold a copy of the same data, and to provide a document in a form that
would be acceptable to public authorities and the courts.345 According to Buys, the
requirement that a document should be reduced to writing is primarily required for
certainty.346 The Bill and the ECT Act reflect that the document should be available for
subsequent reference to satisfy the ‘in writing’ requirement. The ECT Act further says
it must be a data message.
It has been expressed that the said availability for
subsequent reference is important for certainty.347
Section 8(2) of the Bill is vague as it does not clarify under what circumstances the ‘in
writing’ requirement may be required by law, or instances where legal consequences
attach merely by failure to reduce an information into writing. Part of subsection 8(1)
which reads that where the law provides certain consequences where information is
not reduced into writing is misguided. The ‘in writing’ requirement essentially falls
under mandatory provisions in electronic transactions legal framework, and as such
343
S8 of the Bill.
S12 ECT Act.
345 Papadopoulos (2012: 93 at 101).
346 Buys (2004: 85).
347 Van der Merwe (2008: 165).
344
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