Introduction

The ability to electronically perform transactions between individuals, and individuals and public bodies, has transformed the way business is conducted and the manner in which services are rendered to members of the public. In recent years, laws have been developed to provide a framework in which such transactions can take place as legitimate and lawful alternatives to transacting in the “normal” course. This article provides a brief overview of electronic transactions and communications with public bodies and a consideration by individuals when engaging these e-services in South Africa.

Electronic Communications and Transactions Act 25 of 2002 (“ECT Act”)

The ECT Act enables and facilitates electronic communications and transactions in the public interest in South Africa. One of the objects of the ECT Act is to promote e-government services and electronic communications and transactions with public and private bodies, institutions and individuals.

Key definitions in the ECT Act are those of “data” and “data message”, as this informs the type of information that is given protection under the ECT Act. In terms of section 1 of the ECT Act, “data” means electronic representations of information in any form. In addition, “data message” means data generated, sent, received or stored by electronic means and includes voice, where the voice is used in an automated transaction and a stored record.

Automated systems of public bodies in terms of the ECT Act

The ECT Act allows for public bodies to provide services to the public through electronic means. This is termed “automated systems”. Section 27 of the ECT Act states that any public body that, pursuant to any law (i) accepts the filing of documents, or requires that documents be created or retained, (ii) issues any permit, licence or approval, or (iii) provides for a manner of payment, may accept the filing of such documents, or the creation or retention of such documents in the form of data messages, issue such permit, licence or approval in the form of a data message, or make or receive payment in electronic form or by electronic means. The ECT Act states that such provision of e-services by public bodies must comply with the prescribed laws.

Legislation that requires individuals to obtain any authorisations, approvals, certificates or any other documents issued by public bodies, generally prescribes the manner in which public bodies provide such services. However, if provision is made to automated services, the language employed in such legislation is usually associated with physical documents. This may give rise to a disparity between prescribed physical processes and automated processes.

The ECT Act recognises and attempts to reconcile this disparity. In terms of section 19 of the ECT Act, an expression in a law, whether used as a noun or verb, including the terms “document”, “record”, “file”, “submit”, “lodge”, “deliver”, “issue”, “publish”, “write in”, “print” or words or expressions of similar effect, must be interpreted so as to include or permit such form, format or action in relation to a data message unless otherwise provided for in the Act.

In order to illustrate the above disparity, the Companies Act’s provisions relating to submission of documents to the Companies and Intellectual Property Commission (the “Commission”) are discussed below.

Companies Act 71 of 2008 (“Companies Act”)

Section 6(13) of the Companies Act empowers the Commission to establish a system, using any means of electronic communication, to facilitate the automated (i) reservation of names, (ii) incorporation and registration of companies or close corporations, or (iii) filing of any information contemplated by the Companies Act.

Furthermore, section 6(7) states that an unaltered electronically or mechanically generated reproduction of any document, other than a share certificate, may be substituted for the original for any purpose for which the original could be used in terms of the Act, if that reproduction satisfies any applicable prescribed requirements as to the form or manner of reproduction. Therefore, in terms of the above, the automated process is a legitimate alternative to the physical process in terms of the Companies Act.

A consideration when using e-services

The authenticity or originality of electronically produced documents, such as a certificate downloaded from the e-services portal of a public body, are often questioned. It may be tricky in the normal course to convince other members of the public to accept the electronically generated certificates as an authentic or original document. While producing certified copies of a document may address this concern, it remains an issue until such time that such documents are accepted as originals.

The ECT Act provides guidelines to determining whether a document is original. Section 14 of the ECT Act states that where a law requires information to be presented or retained in its original form, that requirement is met by a data message if the integrity of the information has been assessed and that information is capable of being displayed or produced to the person to whom it is to be presented.

The integrity of a data message is assessed on the following basis:

1. by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display
2. the purpose for which the information was generated; and
3. all other relevant circumstances.

Conclusion

There are many benefits to engaging the e-services provided by public bodies. It allows for efficiency and quicker responses. South African legislation does provide a basic framework to facilitate such services. However, there are established practices in dealing with hardcopy documents in day-to-day transacting for which practices are yet to reconcile with the electronic alternatives now available to the public.