consent to be bound by the terms. The argument is based on the submission that
failure to apply an electronic signature does not nullify an expression of intent to be
bound by a data message.394
3.3.2 Automated transactions in the Lesotho Bill and RSA ECT Act
Section 16 of the Bill reads that a contract formed by the interaction of an automated
message system and a natural person, or by the interaction of automated messages
systems, shall not be denied legal force and effect on the grounds that no natural
person reviewed the transactions thereof.395 Section 17 thereof provides that an input
error in an automated transaction can be withdrawn provided that the other party is
notified as soon as possible, reasonable steps are taken to conform to the instructions
and no material benefit has been received from the goods.396
In the ECT Act, an automated transaction agreement is formed under the following
circumstances, where one or both parties use an electronic agent to conclude an
agreement.397 It is stated that an example of an automated transaction where voice
is used is a contract entered into telephonically by a consumer with an automated
voice answering machine.398 The party using an electronic agent to conclude the
contract is presumed to be bound by the contractual terms,399 a party interacting with
an electronic agent is not bound by the terms unless those were capable of being
reviewed by a natural person prior to contract formation.400 Section 20(d) and (e) of
the ECT Act makes provision for the review of an electronic agreement in an
automated transaction, and withdrawal in case of mistake where there was no
opportunity to correct, and having taken all reasonable steps to comply with
instructions as well as notifying the other party as soon as practicable, and having
received no material benefit.401
394
Buys (2004: 99).
S16 of the Bill.
396 S17 id.
397 S20 (c) ECT Act.
398 The Electronic Communications and Transactions Act
https://www.wits.ac.za/media/migration/files/telelaw12.pdf (accessed 5 February 2016).
399 S20 (c) id.
400 S20 (a) (b) (c) and (d) id.
401 S20 (d) and (e) id.
395
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