An Assessment of the Adequacy of Online Consumers’ Protection Laws: Understanding the Realities and Mirage
Olubunmi Olukemi Obioha 
& Paul S. Masumbe
Issue: Vol.4 No.13 Article 6 pp.1472 – 1480
DOI: https://doi.org/10.38159/ehass.20234136 | Published online 8th December, 2023
© 2023 The Author(s). This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).
Globally, electronic commercial transactions have been rising at a rapid rate. In the context of South Africa, this upward trend is associated with the high rates of mobile technology penetration evinced by using mobile devices like laptops, cell phones, smartphones, tablets, and other emerging electronic tools. Given that the laws and policy framework regulating e-commerce transactions is relatively new and at a developmental stage in the country, there are gaps regarding the regulation of commercial transactions as they relate to consumer protection in the online environment. Some matters have arisen and still emerging because of the outpacing of technological developments with the existing commercial laws. This disparity in technological innovations and the subsisting legal framework tends to affect the modern consumer who prefers to utilise technology to access goods and services and conclude contracts electronically. This study explored the challenges in online contract formation and the extent to which consumers are protected in the e-commerce environment. A qualitative research approach was adopted in this study, by utilising a desktop review of the existing policies and legal instruments on electronic transactions, namely, case law, international instruments, and national laws (the Electronic Communications and Transactions Act 24 of 2002). The study critically examined the mechanisms in the current legal and regulatory framework that facilitate the conclusion of electronic contracts. It also analysed the current international and national legal framework to appraise the adequacy of the subsisting legislation in protecting the rights of consumers who engage in online transactions. Findings from the study revealed that despite the mechanisms put in place by the current South African legal framework, more still needs to be done to ensure legal certainty to consumers, who are the weaker party in e-commerce transactions. The study recommended strengthening consumer protection in the e-commerce environment.
Keywords: Online Contract, Consumers, Online Transactions, Consumer Protection, E-Commerce.
Cases
Gareth Cliff v Electronic Media (Pty)LTD [2016]
Global & Local Investments Advisors (Pty) Ltd v Fouche 71/2019) [2020]
Puncak Niaga (M) SDN BHD v NZ Wheels SDN BHD [2012].
Spring Forest Trading 599 CC v Willbery (Pty) Ltd (725/13) [2014].
Constitutional Legislations
Electronic Communications and Transactions Act 25 of 2002.
The Consumer Protection Act 68 of 2008.
Articles
Ariyaratna, Ruwanthika. “Protecting Consumer Rights in Electronic Contracts: A Lessons From European Union and United Kingdom.” In 11th International Research Conference, 27–32. Colombo: General Sir John Kotelawala Defence University, 2018.
Edwards, Lilian. “Consumer Privacy, on-Line Business and the Internet: Looking for Privacy in All the Wrong Places.” International Journal of Law and Information Technology 11, no. 3 (2003): 226–50.
Fouche, M A. Legal Principles of Contracts and Commercial Law. LexisNexis, 2004. https://books.google.com.gh/books?id=1vQlAQAAIAAJ.
Franco, C Eugine, and Regi S Bulomine. “Advantages and Challenges of E-Commerce Customers and Businesses: In Indian Perspective.” International Journal of Research–Granthaalayah 4, no. 7 (2016): 7–13.
Garcia, Michelle. “Browsewrap: A Unique Solution to the Slippery Slope of the Clickwrap Conundrum.” Campbell L. Rev. 36 (2013): 31.
Holness, D, A Govindjee, and A Shirk. Commercial Law 1: Fresh Perspectives. Pearson South Africa, 2006.
Molony, J.T. Final Report on Consumer Protection. UK: Hansard, 1962.
Naudé, Tjakie, Sieg Eiselen, Elizabeth Stadler, Jacques Plessis, Loretta Feris, Max Loubser, Neville Melville, et al. Commentary on the Consumer Protection Act. 3rd ed. Juta, 2018.
OECD. OECD Recommendation of the Council on Consumer Protection in E-Commerce. OECD, 2016. https://doi.org/10.1787/9789264255258-en.
———. Report on Consumer Protection in Online and Mobile Payments. OECD Publishing, 2012.
Papadopoulos, Sylvia, and Sizwe Snail. Cyberlaw@ SA III: The Law of the Internet in South Africa. Van Schaik, 2022.
Ramsay, Iain. “Between Neo-Liberalism and the Social Market: Approaches to Debt Adjustment and Consumer Insolvency in the EU.” Journal of Consumer Policy 35, no. 4 (2012): 421–41.
Rohendi, Acep. “Consumer Protection in the E-Commerce: Indonesian Law and International Law Perspective.” Berkman Center Research Publication, Forthcoming, 2015.
Smith, Carin. “SA E-Commerce Growing by Leaps and Bounds.” News24, February 22, 2017. https://www.news24.com/fin24/sa-e-commerce-growing-by-leaps-and-bounds-20170222.
Olubunmi Olukemi Obioha (DTech) is a Senior Lecturer at the Department of Management Sciences, School of Economic and Management Sciences, Sol Plaatje University, Kimberley, South Africa. Her research interests revolve around Commercial law, Accounting and Finance, Corporate Governance and Consumer Protection.
Paul S. Masumbe (LLD) is a Senior Lecturer & Chair, Research and Higher Degrees, School of Law, Faculty of Law, Humanities and Social Sciences, Walter Sisulu University, Mthatha, South Africa. His research interests include International Criminal Law, Human Rights, Labour Law, and selected areas of Private Law.
Obioha, Olubunmi Olukemi & Masumbe, Paul S. “An Assessment of the Adequacy of Online Consumers’ Protection Laws: Understanding the Realities and Mirage.” E-Journal of Humanities, Arts and Social Sciences 4, no.13 (2023): 1472 – 1480. https://doi.org/10.38159/ehass.20234136
© 2023 The Author(s). Published and Maintained by Noyam Journals. This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).
Others
