South Africa: "Add To Cart" - Doing Business In A Covid-19 World Part 1 – The Legal Considerations

With no vaccine, and social distancing here to stay, businesses are having to adapt in order to survive and operate during the Covid-19 pandemic.

With all online shopping now permitted by government, many brick and mortar business models are adapting by entering into the e-commerce arena. However, many may not know where to even begin or what is required in order to comply with the laws applicable in this space. The first consideration is whether your product offering is able to be sold electronically. The second being whether you have a registered domain name or the necessary payment facilities and security measures on your platform. Online consumers are much more demanding as the market competes on a global scale for buyers.

In South Africa, the Consumer Protection Act (CPA), Electronic Communications Act (ECTA) and Protection of Personal Information Act (POPIA) all contain provisions to protect the online user.

The Online Purchase: Online Retailers must provide online shoppers with essential information on its website, preferably through website terms and conditions, this includes its full names, physical address, an adequate description of the goods or services being sold, the price payable and the terms of the agreement of sale. Should the online Retailer not provide the required information, then the online shopper would have the right, in terms of section 43 of ECTA, to cancel the online purchase agreement within 14 days. Further, in terms of section 44 of ECTA, an online shopper has the right to cancel the online purchase within 7 days of receiving the goods or services without reason or penalty. However, the above rights to cancel the online purchases do not apply to transactions that were for financial services, online auctions, food and consumables, goods that have been made to order or personalised or the provisions for accommodation, transport or leisure services that are entered into for a specific period of time. If an online shopper cancels the online purchase, the online Retailer must refund the online shopper all payments provided the online shopper pays the costs for returning the goods to the online Retailer and that the goods returned are still in the original packaging and in good condition.

Refunds and Returns: Online shoppers have the right, in terms of section 56 read with section 55 of the CPA, to receive goods which are of good quality and are reasonably suited for the purpose for which they are intended. Should the online shopper find that the goods purchased are defective, he or she would have the right at their discretion to request a replacement or for the goods to be repaired or for a refund to take place within six months from the date of delivery.

Note also that section 61 of the CPA provides that the online Retailer, distributor or even the manufacturer could be held liable in the event that the online shopper suffers harm as a result of the goods being unsafe, or having a product failure or being defective or hazardous.

Consumer Data: Protection of Consumer Data in a South African online shopping environment is currently inadequate. POPIA hopes to address these inadequacies. Once POPIA becomes effective, data captured on the retailer's website, including an online shopper's name, address, credit card details, contact details and even purchase history would be regarded as Personal Information. Online Retailers would need to take proactive measures to ensure that this information is protected, lawfully processed for the specific purpose, and to provide online shoppers with an opportunity to view and amend their details and to not use the information in any further processing without the online shopper's full consent. When POPIA comes into effect, the online shopper will have the right to know and consent to how the online retailer collects, processes and disseminates the Personal Information. Until such time, online shoppers have to be vigilant and ensure they shop on approved or reputable retail websites. It is suggested that businesses new to e-commerce attempt to first become suppliers of various trusted e-commerce platforms in order to build consumer trust before establishing their own e-commerce site.

Should your rights as an online shopper be contravened or should you require assistance with the establishment of an e-commerce site or require any clarity in the above, then please do not hesitate to contact our Commercial Department at anolan@kisch-ip.com or merciaf@kisch-ip.com