becomes aware that the electronic communication has been sent to that address. 362
The communication is capable of being retrieved on dispatch or receipt when it
reaches the addressee’s electronic address.363
3.2.19 Time of dispatch and receipt of communication in the RSA ECT Act
According to the ECT Act, a data message used in the conclusion or performance of
an agreement must be regarded as having been sent by the originator when it enters
an information system outside the control of the originator or, if the originator and
addressee are in the same information system, when it is capable of being retrieved
by the addressee.364 A data message must be regarded as having been received by
the addressee when the complete data message enters an information system
designated or used for that purpose by the addressee and is capable of being retrieved
and processed by the addressee.365
Section 13(2) of the Lesotho Bill stating that communication is deemed to be capable
of being retrieved when it reaches the addressee’s electronic address is identical to
United Nations Convention on Use of Electronic Communication in International
Contracts (CUECIC).366 However, this approach is shown to be cumbersome where
the addressee does not have means to retrieve communication even though it would
have long entered the information system.367 It is sound to prefer the Model Law’s
notion of entry that says a data message is dispatched upon entry as opposed to mere
reaching of the information system,368 over the requirement that communication
should reach an addressee’s electronic address. It is felt that Section 13(1) (b) of the
Bill, stating that communication would be regarded capable of being retrieved where
the information system is undesignated when an addressee becomes aware that it
has been sent, share some elements of the information theory as opposed to the
reception theory to which the Bill applies, and thus should be removed. Section 23(b)
362
S13 (1) (b) id.
S13 (2) id.
364 S23 (a) ECT Act; Van der Merwe (2008: 163) states that an email, for instance, is deemed to have been sent
when the message leaves the serve and is transported through the internet where the information systems are
different.
365 S23 (b) ECT Act; Stoop (2009: 110 at 118).
366 CUECIC available at www.uncitral.org/pdf/english/texts/electcom/06-57452_Ebook.pdf (accessed 30 June
2015).
367 Papadopoulos (2010:188 at 200).
368 Pistorius (2002: 129 at 147).
363
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