Pistorius explains that with incorporation by reference, it entails that a message may
have embedded in it a uniform resource locators (URL) that directs the reader to the
target document through hypertext links which is regarded as part and parcel of a data
message,385 which is a functional equivalent of ticket cases under common law,386
although in electronic contracts a higher standard is set than in common law that terms
must be readily accessible to the customer either electronically or as a printout, 387 as
it is indicated under the ECT Act.388 Contrary to the Lesotho Bill, section 11(3) of the
ECT Act outlines the minimum requirements that an incorporated text must meet in
order to be valid. The information must be referred to in a way in which a reasonable
person would have noticed the reference and incorporation thereto, accessible in a
form in which it may be read, stored and retrieved by the other party whether
electronically or as a computer printout as long as it is reasonably capable of being
reduced to electronic form by the party incorporating it.389
To this end, it is noted that section 11(3) creates a presumption for an enforceable
incorporation in contracts of adhesion because a data message does not refer to the
information in the public domain.
390
It is expressed that the best practice in drafting
incorporation by reference agreements would be to ensure that incorporated text is
available through a hyperlink,391 to ensure that the customer reads the terms before
they are enforced.392 It is submitted that this is a good proviso which the Lesotho Bill
should incorporate in order to guard against the loopholes, and to conform to the best
international electronic transacting practices. It is concluded that generally, for
contracts of adhesion,393 the intention of parties to be bound can be proved in terms
of section 7(2) of the Lesotho Bill and section 24 of the ECT Act on an expression to
be bound by other means other than the signature, by performing an indicated step to
385
Pistorius (2004: 568 at 574); Michalsons e-commerce 2009 http://www.michalsons.co.za/blog/ecommerce-getting-the-deal-through-2/4377 (assessed 4 February 2016).
386 Papadopoulos et al (2012: 55); Van der Merwe (2008: 167) expounds that tickets cases relate to a
document which is signed by parties which makes reference to the applicability of the included standard terms
that are available somewhere such as sales dockets.
387 Van der Merwe et al (2008: 168).
388 S 11(3) ECT Act.
389 S3 (1) id.
390 Rens (2002: 22 at 24).
391 Rens (2002: 22 at 24).
392 Papadopoulos et al (2012: 55).
393 Pistorius (1999: 282 at 291) states that contracts of adhesion dispense with the signature requirement.
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