The ECTA section 43 checklist
ECTA section 43 applies to a supplier “offering goods or services for sale, for hire or for exchange by way of an electronic transaction”, and its duties are owed to consumers — natural persons buying as end users. Such a supplier must make the following information available to consumers “on the web site where such goods or services are offered” (section 43(1)), and must let the consumer review the entire transaction, correct any mistakes and withdraw before finally placing an order (section 43(2)). If the supplier fails to do so, the consumer may cancel the transaction within 14 days of receiving the goods or services (section 43(3)).
- Full name + legal status (Pty Ltd, CC, sole prop); for a company or other legal person, its registration number, the names of its office bearers and its place of registration
- Physical address + telephone number, and the physical address where you will accept legal service of documents
- Website address + e-mail address
- Membership of any self-regulatory or accreditation bodies (with their contact details), and any code of conduct you subscribe to and how consumers can read it online
- A description of the main characteristics of the goods or services, enough for the consumer to make an informed decision
- The full price (including transport costs, taxes and any other fees or costs) + the manner of payment
- The terms of agreement that will apply, including any guarantees, and how consumers can access, store and reproduce them; the minimum duration of any ongoing or recurring agreement
- When the goods will be dispatched or delivered, or the services rendered, and how consumers can access and keep a full record of the transaction
- Return, exchange and refund policy
- Any alternative dispute resolution code you subscribe to, and how consumers can read it online
- Security procedures and privacy policy for payment, payment information and personal information
- The consumer’s cooling-off rights under section 44, where they apply
Six mistakes SA websites make in their T&Cs
- Using a US or UK terms-of-service template wholesale. The CPA plain-language requirement, ECTA s 43 disclosures, and POPIA terminology are SA-specific.
- Treating T&Cs and privacy policy as the same document. They have different legal purposes — T&Cs govern your commercial relationship with the user; the privacy policy explains POPIA-compliant data processing.
- Including a one-sided arbitration clause designating a foreign jurisdiction. Unenforceable against SA consumers under the CPA; produces friction with B2B counterparties.
- Auto-renewal clauses without complying with the CPA (section 14 read with Regulation 5) — for natural-person consumers it caps fixed-term agreements at 24 months and requires 40–80 business-day advance notice of expiry. This CPA statutory expiry-notice is a distinct mechanism from the 60–90 day B2B renewal windows that are common market practice; do not conflate them. (Section 14 does not apply to juristic-person customers, so B2B terms may differ.)
- Reserving the right to "modify these terms at any time without notice". Unenforceable unfair-term under section 48 of the CPA.
- Forgetting to address electronic-signature acceptance under ECTA s 13. A click-wrap "I agree" needs to be intentional, informed, and recorded.
Frequently asked
Does every SA website legally need terms and conditions?
Not every website — but every website that sells online, in practice. ECTA section 43 applies to a supplier "offering goods or services for sale, for hire or for exchange by way of an electronic transaction", and requires it to make prescribed information available to consumers (natural persons buying as end users) on the website, including "any terms of agreement, including any guarantees, that will apply to the transaction". On its wording, section 43 does not reach a site that only provides information or collects enquiries, though terms of use are still worth having there. The remedy has teeth: under section 43(3), a consumer may cancel the transaction within 14 days of receiving the goods or services if the supplier failed to make the required disclosures or to let the consumer review and correct the order. Separately, ECTA section 22 confirms that an agreement is not without legal force merely because it was concluded by data messages, so properly presented website T&Cs can bind your users; without them, your business is left in a weaker legal position than it needs to be.
How are website T&Cs different from a privacy policy?
T&Cs govern the commercial relationship between the website operator and the user — what services are offered, what payment is required, what each party can and cannot do, how disputes are resolved. The privacy policy is a POPIA-mandated transparency notice explaining what personal information is collected, why, how long it is kept, who it is shared with, and how data subjects can exercise their rights. Most websites need both, and they should reference each other but remain separate documents.
Are click-wrap "I agree" terms enforceable in South Africa?
Yes — under section 13 (electronic signatures) and section 22 (electronic agreement formation) of ECTA. The requirements are: the user must have meaningful opportunity to read the terms; the act of acceptance (clicking, checkbox) must be unambiguous and intentional; the system must record the act of acceptance with timestamp and version. Browse-wrap terms (where mere continued use implies acceptance) are weaker and may be challenged for lack of intentional consent.
How often should website T&Cs be updated?
Review annually at minimum. Trigger an immediate review when: legislation changes (POPIA amendments, Cybercrimes Act updates, CPA threshold changes); your business model changes (new services, pricing structures, payment methods); you enter a new market or jurisdiction; a regulator or consumer complaint highlights an issue. Material changes should be communicated to existing users with adequate notice and continued use treated as acceptance — not silently substituted.
What does the Website Legal Package cover?
Our fixed-fee Website Legal Package (R12,500 excl VAT) covers: website Terms of Use, a POPIA-aligned Privacy Policy, and Cookie Policy guidance. It is suited to most SA online businesses — e-commerce, SaaS, professional services, marketplaces, content platforms. For more complex sites (regulated industries, multi-jurisdiction operations, custom workflows), bespoke drafting is needed.
Are website T&Cs the same for B2B and B2C sites?
No. B2C T&Cs must comply with the CPA — plain-language requirement (section 22), unfair-terms protections (section 48), cooling-off rights (ECTA section 44 for electronic transactions, subject to the section 42(2) exclusions; section 16 CPA for direct marketing), and — for natural-person consumers only — the 24-month fixed-term cap (section 14). B2B T&Cs have more flexibility on these dimensions. ECTA’s section 43 disclosures are owed to "consumers", which ECTA defines as natural persons who are the end users of the goods or services — so they do not protect a company customer, although a sole proprietor buying for their own use can be a consumer. POPIA processing terms apply either way. Many SA sites need both — a B2C path and a B2B path with different T&Cs.