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Nowadays most of business communication is in digital format. Business probably generally save all digital communication and documentation in digital format and probably on top of that also file hard copy versions of the digital documents. This obviously requires quite an effort in terms of retention and archive management.

Up to now business really had no choice but to maintain a costly dual system for digital and physical retention of all business communication as technological progress in digital communication had left behind the law that still requires physical documentary evidence should any matter be heard in court.

Reprieve however is in sight now since the promulgation of the Electronic Transactions Act, Act no 4 of 2019 in government gazette 7068 of 29 November 2019 that hardly received any attention in the media although it will bring about major changes to the creation, capturing, processing and retention of business documentation and communication.

Another perspective to this new law is that it provides for public electronic information systems such as ITAS to now become a legal obligation for the tax payer.

Here are a few key matters from Act:

General purpose of Act -

  • Provides a general framework for the use and recognition of electronic transactions.
  • Gives legal effect to electronic transactions and data messages.
  • Consumer protection is provided in electronic commerce specifically dealing with suppliers offering goods or services for sale, for hire or for exchange by way of an electronic transaction.
  • Provides for the admission of electronic evidence in court.
  • Act establishes the Electronic Info Systems Management Advisory Council to advise Minister

S 1 Definitions –

  • Types of electronic signature –
    • ‘electronic signature’ – data (incl sound, symbol or process) to identify person and indicate his approval with content of data message or attachment
    • ‘recognised electronic signature’ – advanced electronic signature per s 20(3) (i.e. as per regulation)
  • Excluded laws (i.e. prevailing rules regarding physical documentation and signatures remain in place) –
    • Wills Act;
    • Alienation of Land Act;
    • Stamp Duties Act, Bills of Exchange Act;
    • any law requiring borrower (i.e. financial transactions) to sign a contract;

S 16 Legal recognition and effect of data messages and electronic transactions

  • All transactions prior to this law remain valid;
  • Does not apply to excluded laws.

S 17 Legal recognition of data messages

  • Data messages in the form of statements, representation, expression of will or intention, transactions or communication, will have legal effect.
  • Persons involved may regulate use of data messages.
  • Subject to this law no person may be forced by public body to interact by means of a data message.
  • Electronic signatures are now recognized as legally valid, except in terms of the Wills Act and Alienation of Land Act.
  • Functionary’s (i.e. regulator or supervisor such as Inland Revenue re ITAS) powers to prescribe form or manner to submit info extends to -
    • Procedure for use of data messages;
    • Format for provision of data;
    • Specific type of electronic signature and manner of attachment;
    • Class of security product to be used;
    • Appropriate control processes and procedures;
    • Manner of storage or retention of information;
    • Reference to ‘writing’ in any law refers to data message;
    • Reference to ‘signature’ in any law refers to electronic signature;
  • For electronic evidence to be admitted as an original source: the information must remain complete and unaltered from time of first generation.
  • The level of reliability must be assessed in light of the purpose for which it was generated.
  • Where law requires -
    • multiple copies to be submitted, one data message capable of reproduction satisfies this;
    • document or info to be sent by mail/similar service, electronic submission satisfies this;
    • info to be retained, electronic retention of data message satisfies this if retained in format it was generated and record enables identification of origin and destination.
  • Admissibility and evidential weight of data messages
    • Electronic evidence is admissible and the general rules of evidence apply.
    • The best evidence rule does apply.
    • The court will assess the weight given to the evidence.
    • The court will look at the reliability, integrity and the method used in how the evidence was obtained.
    • Certified copy of print-out of data message is admissible if affidavit provided as required by S 25((4).
    • The data message may be certified by the creator in affidavit that the contents are correct, except in cases of hearsay evidence.
  • Formation and validity of contracts
    • Where data messages are used in the formation of a contract, the contract will have legal effect. Info in data messages is also recognised as legally enforceable if message indicates that info is regarded to have been incorporated in the message.
    • Rules for time and place of dispatch and receipt and attribution set out.
    • A contract formed by the interaction of an automated message system and a person, or by the interaction of automated message systems, is not without legal effect, validity or enforceability on the sole ground that no natural person reviewed any of the individual actions carried out by the systems or the resulting contract.
    • Consumer protection

S 34 Information to be provided:
Where a supplier offer goods or services for sale, for hire or for exchange by way of an electronic transaction on the internet, certain minimum information must be provided, else consumer may cancel transaction.

S 35 Cooling-off period:

  • Consumer may cancel transaction within 7 days without reason and without penalty, but direct cost for returning goods may be charged. Refund must be paid within 30 days.

S 36 Unsolicited goods, services and communications:

  • Minimum info of marketer to be provided.
  • Opt-in requirement to be provided for.
  • No contract is formed where addressee has failed to respond to such communication.
  • Not providing an operational op-out facility is an offence subject to a max find of N$ 500,000 or 2 years imprisonment or both upon conviction.

S 37 Performance

  • Supplier must execute within 30 days else consumer may cancel.

S 40 Complaints

  • A consumer may lodge a complaint with the Online Consumer Affairs Committee in respect of non-compliance by the supplier with this act.

S 41 to 48 – Accreditation of data security services or products.
S 49 to 57 – Liability for unlawful material.

Download the Government Gazette in which this Act was promulgated, here...

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