1. International Telecommunication Union HIPSSA Project Support for Harmonization of the ICT Policies in Sub-Sahara Africa

2. LESOTHO - WHERE WE ARE BUSINESS CENTRES ALONG THE BORDERS OF SA BUSINESS ACTIVITY CONVERGING TO THE BORDER TOWNS NO E-COMMERCE LEGISLATION WITHIN LESOTHO IN CONTRAST TO STRONG E-COMMERCE FRAMEWORK IN SOUTH AFRICA DEFAULT E-COMMERCE TRANSACTIONS (BANKING, MOBILE MONEY, INVESTMENT SCHEMES ETC)

3. THE CURRENT POLICIES & LAWS  EXISTING LAWS PRE- DATE AGE OF ICT  EXISTING POLICY EMBRACES ICT  SPORADIC ACTS FOR CERTAIN INITIATIVES

4. THE POLICIES & LAWS  EXISTING LAWS PRE-DATE AGE OF ICT  EXISTING POLICY EMBRACE MOVE TO ICT  SPORADIC ACTS FOR CERTAIN INITIATIVES  JUDICIAL INTERPRETATION & CASE LAW – PAPER BASED RULES

5. THE POLICIES & LAWS  CONTRACT LAWS – ROMAN DUTCH PRINCIPLES AND CASE LAW BASED ON PAPER BASED TRANACTIONS  SIGNATURE - LIABILITY PREMISED ON HANDWRITTEN SIGNATURES  EVIDENCE RULES – PREMISED ON PAPERS FILED REQUIRED TO BE ORIGINALS  AUTHENTICATION – RELYING ON PHYSICAL VALIDATION  COMMUNICATIONS & SERVICE OF PROCESS (PHYSICAL & POSTAL)

6. THE PAPER BASED LAWS  BILLS OF EXCHANGE PROCLAMATION 1912  AUTHENTICATION OF DOCUMENTS PROCLAMATION 1964  GOVERNMENT PROCEEDINGS AND CONTRACT ACT – 1965  INTEPRETATION ACT – 1977  CRIMINAL PROCEDURE & EVIDENCE ACT – 1981  APPEAL COURT, HIGH COURT & SUBORDINATE COURT RULES 6

7. INNOVATIONS FOR ICT  COMMUNICATIONS POLICY – 2005 (e- Commerce, e-Government & Data Protection)  CRIMINAL CODE 2010 – (extraterritorial jurisdiction)  COMMUNICATIONS ACT 2011 criminalization of acts(tampering, tracing & interception of communications)  DATA PROTECTION ACT 2011 – recognition of e-mails, electronic records & protection of data & privacy) 7

8. INNOVATIONS FOR ICT (cont)  COMPANY’S ACT 2011 (e-filings))  COMMUNICATIONS  Service Provider Rules (Consumer Protection and confidentiality)  Internet Service Provider Rules (Licensing requirements and obligations of ISP’s)  FINANCIAL REGULATION (Mobile Money Guidelines – Consumer Protection)  DRAFT INFORMATION TECHNOLOGY ACT 8

9. THE GAPS  Legal recognition  Legal effect  Security  Consumer protection  Service provider liability  Enforcement  International Liaison/Recognition 9

10. NEXT STEPS  THE BILL ON ELECTRONIC TRANSACTIONS AND ELECTRONIC COMMERCE 10

11. Three pillars 11

12. CORE provisions  Definitions  DATA MESSAGE “ data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy”  ELECTRONIC COMMUNICATION “ means a communication by means of data messages  ELECTRONIC SIGNATURE “ means any letters, characters, numbers or other symbols [in digital form] attached to or logically associated with a data message, and executed or adopted with the intention of authenticating or approving the data message”  INFORMATION SYSTEM / SERVICES “ a system for generating, sending, receiving, storing, displaying or otherwise processing data messages”  AUTOMATED MESSAGE SYSTEM  S 2 Data protection Act (i) writing on any material (ii) information produced recorded or stored by means of …… computer equipment, whether hardware or software or both)

13. Key Objectives  to facilitate the appropriate use of electronic transactions;  to promote technological neutrality foster the development of e- commerce through the use of secure e-signatures;  provide for e-filing and submission of documents through e-government services  to remove legal uncertainties over writing, original documents admissible evidence  promote the public and consumer confidence in the use

14. EXCLUSIONS  the creation or execution of a will;  negotiable instruments; S61 financial services  the creation, performance or enforcement of an indenture, declaration of trust or power of attorney;  any contract for the sale or other disposition of immovable property, or any interest in such property;  the conveyance of immovable property or the transfer of any interest in immovable property;  documents of title.  exclusions for consumer protection (perishables & goods specific to order)

15. INTERPRETATION APPLICABILITY  Scope “ regulation of electronic communications and transactions; to provide for protection of consumers and personal data in the electronic environment”  Interpretation – applies to all law  RULE OF LAW INTERPRETED TO ACCOMMODATE AND FACILITATE E- COMMERCE TRANSACTIONS – S.7.  Applicability –  all law unless excluded  No person forced  Agreement may be inferred  Parties may vary 15

16. 16 THANK YOU… Nthabiseng Motjolopane ITU NATIONAL EXPERT & pistot@unisa.ac.za Research Professor: UNISA Union Internationale des Télécommunications International Telecommunication Union