Van der Merwe says this is a common law position regarding mistake providing that a
contract will be void until the mistake is corrected.402 Glaringly, the Bill has no provision
for the review of an automated transaction by a natural person, where the other party
uses an electronic agent, prior to contract formation. This standard is considered
important for certainty purposes, and should be covered by the Bill. The provision of
automated transactions is mandatory under the ECT Act and a default position in law
under the Lesotho Bill. The automated processes form an important growing trend.403
In light of this development, it is submitted that the Lesotho Bill should make this
provision obligatory, which once engaged into by the parties, should apply as a matter
of course, not by parties’ choice, in order to ensure compliance in this regard.
3.4 OBSERVATIONS
Informed by this interrogation, it is concluded that the provisions of the Bill and the Act
pertaining to the exact time for contract formation are commendable. As it was viewed,
the juxtaposition indicated that some of the electronic contracting provisions of the two
enactments reflect the Model Law’s position on functional equivalence approach in
according electronic contracts the same legal recognition as the paper-based
contracts. It was further indicated that some electronic transactions provisions of the
Bill are similar to those of the ECT Act, while others are different. It is equally true that
there are other electronic contracting provisions of the enactments which do not
adequately address challenges precipitated by electronic commerce in an online
environment, and hence a need for legislative reform. It is in light of the foregoing that
the next chapter on conclusions and recommendations attempts to propose how the
envisaged Bill may resolve these legal issues.
402
403
Van der Merwe (2008: 159).
Buys (2004: 97).
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