The regulatory overlay for SA e-commerce
ECTA — Mandatory Disclosures (s 43)
Business identity, contact details, full pricing, terms, delivery, refund policy, security and privacy — required on the website where goods or services are sold to consumers. If they are missing, the consumer may cancel within 14 days of receiving the goods or services (section 43(3)) and may complain to the National Consumer Commission (section 49). Most e-commerce sites are technically non-compliant.
ECTA — 7-Day Cooling-Off (s 44)
Consumers (natural persons) may cancel an electronic transaction without reason or penalty within 7 days of receiving the goods, or of concluding the agreement for services. The only charge allowed is the direct cost of returning the goods; any payment is refunded within 30 days of cancellation. Not every transaction qualifies: section 42(2) excludes, among others, services that began with the consumer’s consent before the 7 days ran out, computer software or audio and video recordings the consumer has unsealed, made-to-order or personalised goods, newspapers, magazines and books, financial services, auctions, and accommodation, transport, catering or leisure booked for a specific date or period.
CPA — Plain Language + Unfair Terms (s 22, 48)
Consumer-facing T&Cs must be in plain language. One-sided terms (broad liability waivers, unilateral amendment rights, punitive cancellation fees) face section 48 unfair-term scrutiny.
CPA — Fixed-Term Cap (s 14)
Consumer fixed-term agreements (including subscription products) capped at 24 months. 40–80 business days advance notice of expiry required. Auto-renewal clauses non-compliant with s 14 are unenforceable.
POPIA — Consumer + Marketing Lists
Section 69 direct-marketing rules — opt-in consent for electronic marketing, with a narrow exception for your own existing customers (s 69(3)); every message must give an address to opt out. Section 21 operator agreements with email service providers, fulfilment partners, analytics platforms.
Property Practitioners Act + sector-specific
Some e-commerce verticals (property, automotive, financial-services products) attract sector-specific licensing requirements. Marketplace operators sometimes bear vicarious responsibility for participating sellers.
Counterfeit Goods Act + IP enforcement
Marketplace operators face increasing pressure to police counterfeit and IP-infringing listings. Notice-and-takedown procedures, IP-rightsholder cooperation frameworks, repeat-infringer policies.
Frequently asked
What ECTA section 43 disclosures must my e-commerce site display?
Section 43(1) lists eighteen items, including: full name and legal status (with registration number and office bearers for a company); physical address, telephone number and an address for service of legal documents; website and e-mail address; a description of the goods/services and the full price including transport costs, taxes and other fees; manner of payment; terms of agreement and guarantees; delivery time; return, exchange and refund policy; any alternative dispute resolution code; security procedures and privacy policy; and the consumer’s cooling-off rights. They must be available to consumers (natural persons buying as end users) on the website where the goods or services are offered, and the consumer must be able to review and correct the order and withdraw before finally placing it (section 43(2)). Most SA e-commerce sites are technically non-compliant on at least one of these.
Does the 7-day cooling-off period apply to digital downloads and SaaS?
Not always. Section 44 of ECTA gives consumers (natural persons buying as end users) the 7-day right, but section 42(2) switches it off for a list of transactions. For SaaS and other services, it falls away if the service began with the consumer’s consent before the 7 days ran out (section 42(2)(d)). For software, it falls away once the consumer has unsealed it (section 42(2)(g)); the Act does not say how "unsealed" applies to a download. A clause in which the consumer simply gives up the cooling-off right is void (section 48). Best practice: if the service starts at once, record the consumer’s consent to that start; otherwise structure the offering to accommodate the cooling-off right.
Can a marketplace operator be liable for counterfeit goods listed by third-party sellers?
Increasingly yes. The Counterfeit Goods Act 37 of 1997 and adjacent IP law create exposure for marketplace operators who facilitate sale of infringing goods. Defensible structure: a notice-and-takedown procedure that responds promptly to rights-holder complaints; a repeat-infringer policy; cooperation framework with brand-protection programmes; and clear seller-onboarding obligations requiring IP warranties. Pure passive-conduit safe-harbour under ECTA Chapter XI has narrowed in modern practice.
What contract stack does a SA e-commerce / marketplace platform need?
Website T&Cs with ECTA s 43 disclosures and the ECTA s 44 cooling-off right (the CPA’s own cooling-off right in s 16 covers only transactions resulting from direct marketing, and does not apply where ECTA s 44 does); Privacy Policy with POPIA framework; Cookie Policy; Seller / Vendor Agreement (for marketplaces); Buyer Terms (for marketplaces); Payment-processor agreement; Logistics-partner agreement; POPIA Data Processing Addenda with payment processors and analytics. Stack from R35,000; ongoing retainer R7,500–R15,000/month.
What about cross-border e-commerce — selling from SA into other African markets?
Each African jurisdiction has its own consumer-protection, data-protection, and tax framework. Continental harmonisation under the African Continental Free Trade Area is progressing but slowly. Practical approach: identify your top 3 cross-border target markets (typically Kenya, Nigeria, Ghana for SA-headquartered businesses); engage local counsel for each on a one-off basis to localise the SA contract framework; maintain the SA framework as the master.