The enactment of the Electronic Communications and Transactions Act [Act 14 of 2014] (“the Act”) is important within the context of a Botswana economy that seeks to diversify from being heavily dependent on the diamond-mining sector. The Act is expected to facilitate e-commerce, primarily because it gives legal recognition and validity to electronic communications and transactions.
Highlights from the Act include the following:
- information shall not be denied legal effect, validity or enforcement solely on the grounds that it is in the form of an electronic communication. Electronic communications has been defined as information, generated, communicated, processed, sent, received, recorded, stored or displayed by electronic means;
- electronic signatures which are used to identify the signatory, and indicate consent for the information contained in the said communication, have been given legal recognition. Secure Electronic Signatures, on the other hand, require a party that intends to use them to apply for accreditation from the Botswana Communications Regulatory Authority. The Electronic Communications and Transactions Regulations [42 of 2016] which details the procedure for accreditation are not yet in force, but are expected imminently;
- electronic communications, subject to the Electronic Records (Evidence) Act [Act 13 of 2014], shall be admissible as evidence in legal proceedings and will be given due evidential weight by the Courts;
- subject to certain conditions set out below contracts concluded electronically are enforceable. In particular, the Act provides that an offer and acceptance may be expressed by means of electronic communication and that a contract will not be denied legal validity on the sole ground that an electronic communication was used wholly or partly in the formation of the contract; and
- the Act excludes the following transactions from being executed electronically:1. the creation or execution of a will;
2. the creation, performance or enforcement of an indenture, declaration of trust or power of attorney;
3. any contract for the sale or disposition of immovable property, or the sale or disposition of any interest in such property; and
4. the transfer or conveyance of any immovable property or the transfer or conveyance of interest in such property.