In South Africa, e-commerce transactions are regulated by the Electronic Communications and Transactions Act 25 of 2002 (ECTA) and the Consumer Protection Act 68 of 2008 (CPA).
ECTA seeks to facilitate and regulate electronic communications and transactions in South Africa by, among other things, (i) removing and preventing barriers to electronic communications and transactions and (ii) developing a safe and effective environment for consumers, businesses and governments to conduct and Use of Electronic Transactions. ECTA’s purpose is to enable and facilitate electronic communications and transactions in the public interest and to promote the understanding, acceptance and growth of electronic transactions in South Africa.
The CPA aims to promote responsible consumer behavior and advance ethical business practices by removing the barriers consumers face when purchasing goods or services. The CPA generally applies to all transactions taking place in South Africa, including electronic transactions, unless the application of the CPA is specifically excluded. The CPA provides various protections and remedies for consumers to ensure they are not being exploited or harmed.
However, ECTA also provides protection measures and legal remedies for consumers. Accordingly, there is an interplay between the ECTA and the CPA as these laws overlap in certain respects. This is recognized in Section 2(9) of the CPA, which provides that where there is a conflict between the CPA and another statute (such as the ECTA), the provisions of both statutes must be applied simultaneously as far as possible without violating the second statute . However, where this is not possible, the law that affords a consumer the greater degree of protection must be applied (unless a law expressly provides that another law would apply in circumstances where the same issue is governed by that other law) .
Below we discuss some examples of the interaction between CPA and ECTA.
Examples of the interaction of CPA and ECTA
time to think
According to Section 44 of the ECTA, a consumer has the right to cancel an electronic transaction (or a related credit agreement) for the supply of goods or services without giving any reason and without penalty within seven days of receipt of the goods or conclusion of the agreement (if applicable). In other words, the consumer has a seven-day cooling-off period under ECTA.
On the other hand, Section 16(3) of the CPA provides that a consumer may cancel a transaction for the supply of goods within five working days of delivery of the goods or conclusion of the contract if the transaction is direct marketing. In other words, the consumer has a five-day cooling-off period under the CPA if the transaction resulted from direct marketing.
However, Section 16(1) of the CPA states that Section 16 of the CPA does not apply to a transaction where Section 44 of the ECTA applies to that transaction. Accordingly, should an electronic transaction result from direct marketing, the consumer is entitled to a seven-day cooling-off period (as provided for in Section 44 of the ECTA) as opposed to the five-day cooling-off period (in relation to Section 16(3) of the CPA). Accordingly, the ECTA will trump the CPA as the CPA expressly states that the ECTA would apply in these circumstances.
delivery and performance
Section 46 of the ECTA and Section 19 of the CPA both deal with supply and performance. Section 46 of the ECTA states that the supplier must fulfill an order within thirty days from the day the supplier received the order, unless the parties have agreed otherwise.
Section 19 of the CPA states that the supplier is responsible for delivering the goods and performing the service by the agreed date and time or otherwise within a reasonable time after the conclusion of the transaction or agreement. However, section 19(1)(b) of the CPA states that this section does not apply to a transaction where the conduct of that transaction is governed by section 46 of the ECTA.
Accordingly, where an electronic transaction has been completed, the supplier must fulfill the order within thirty days and not within a “reasonable time” as required by the CPA. However, the parties can agree on later or earlier delivery.
Display of prices
Section 23 of the CPA prohibits retailers from listing goods for sale without displaying the price of those goods. In addition, Section 23 sets out the requirements for a reasonable displayed price and other related matters relating to the displayed price.
Section 43 of ECTA, on the other hand, sets out the information disclosure requirements that suppliers must comply with in relation to electronic transactions. This includes disclosing the full price of the goods or services (including transportation charges, taxes, and any other fees or charges). In addition, suppliers are required to provide information on their website regarding their legal status, accreditation, code of conduct and physical address.
Section 23 of the CPA specifically states (in relation to electronic transactions) that the information disclosure obligations set out in Section 43 of the ECTA trump the obligations set out in the CPA.
The consumer protection mechanisms contained in both the ECTA and the CPA both govern the system of doing business over the Internet. It is important for companies doing business over the internet to be aware of the nuances of these two pieces of legislation and when either applies. In certain cases, the remedies available to a consumer are set out in the ECTA and not the CPA. Accordingly, both businesses and consumers need to be aware of the various pieces of legislation that apply to consumer transactions in order to fully exercise their rights.