of the ECT Act requiring a complete receipt of a data message has often been
criticised of being more stringent than in common law where receipt occurs despite
the unintelligibility of the message.369
The ECT Act specifies that dispatch of a data message referred to in section 23(a) is
intended for the conclusion or performance of an agreement, while section 23(b) on
receipt of data messages, and section 23(c) on place of dispatch and receipt of a data
message are silent on the question of the conclusion or performance of a contract, as
though the conclusion of a contract applies on dispatch of a data message only.370
The Lesotho Bill makes reference to the time and place of dispatch and receipt of
communication, and similarly overlooks the legislature’s intention for the provisions to
apply on conclusion of a contract. In order to avoid the interpretation difficulties which
may be posed by this omission, it is correctly argued that the legislature should
expressly state in all the provisions that they are intended to apply in the conclusion
of an agreement.371
3.2.20 Place of dispatch and receipt of communication in the Lesotho Bill
An electronic communication is deemed to have been dispatched at the place where
the originator has its place of business, and is deemed to be received at the place
where the addressee has its place of business,372 or if the originator or the addressee
has more than one place of business, the place of business is that which has the closet
relationship to the underlying transaction having regard to the circumstances known
or contemplated by the parties at any time before or at the conclusion of the contract
or if there is no underlying transaction, the principal place of business. 373
If the
originator or the addressee does not have a place of business, reference is to be made
to that person’s habitual place of residence and the usual place of residence, in relation
to a body corporate means the place where it is incorporated or otherwise legally
constituted.374 Section 14 applies notwithstanding that the place where the information
system supporting an electronic address is located may be different from the place
369
Pistorius (2006:178 at 207).
Buys (2004: 97).
371 Buys (2004: 98).
372 S14 (1) of the Bill.
373 S14 (2) of the Bill.
374 S14 (2) (b) (c) id.
370
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