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Lecture 1. Introduction to Electronic Transactions Law

South Africa's E-Commerce Policy

South Africa’s e-commerce policy has been developed in the 1999 Discussion Paper and the 2000 Green Paper (A Green Paper on Electronic Commerce for South Africa). The Green Paper identified the following underlying principles as being key to the development of an e-commerce policy for South Africa (par 1.2):

  1. Quality of life
  2. International Benchmarking
  3. Consultative process
  4. Flexibility
  5. Technology neutrality
  6. Supporting private-sector-led and technology-based solutions and initiatives
  7. Public-Private partnership
  8. Supporting small, medium and micro enterprises (SMMEs) and informal sector

The Green Paper identified the main focus areas as the need-

  1. for confidence in the security and privacy of transactions performed electronically;
  2. to enhance the information infrastructure for electronic commerce;
  3. to establish rules that will govern electronic commerce;
  4. to bring the opportunities of e-commerce to the entire population.

Based on this, it suggested the following themes as being central to the policy:

  1. Legal and regulatory issues
  2. Building trust in the digital economy
  3. Access, infrastructure and enabling
  4. Technologies
  5. Maximising the benefits: economic and social impacts

Paragraph 1.4 of the Green Paper envisaged the following process in the further development of policy and eventual legislation:

  • Discussion Paper (July 1999)
  • Green Paper (October 2000)
  • White Paper (2nd quarter 2001) and
  • Specific legislation (3rd or 4th Quarter 2001.

However, matters did not progress as planned and a white paper was not subsequently published. The Electronic Communications and Transactions Act, 2002 emerged as the legislation to regulate e-commerce and as such, is the main source of law relied upon in this module.

There are several other policy documents and developments that have a bearing on electronic transactions. These are:

  1. The National Information Society and Development Plan, 2007 (e-strategy required by s5(1) ECTA)
  2. The National Integrated ICT Policy Colloquium held on 19 April 2012 (e-commerce & digitising government commission) which sought to spearhead the development of a national ICT Policy (see overview at http://kganyago.org/2012/04/24/the-beginning-of-a-beginning-integrated-ict-policy-for-south-africa/)
  3. The National Cyber Security Policy Framework for South Africa was approved by Cabinet, 2012

These policy documents and developments are critical to the understanding of applicable legislation and will inform any reform. It is thus important to consider whether or not the policy framework is comprehensive and meaningful and whether or not it has led to an appropriate regulatory framework.