SAPS Warns Against Buying or Selling Goods Through Online Platforms

The South African Police Service (SAPS) has issued a critical warning to the public regarding the escalating risks associated with buying and selling goods through online platforms like Facebook Marketplace. This alert highlights a concerning increase in fraud-related cases, including non-delivery after payment, requests for upfront payments for non-existent goods, and instances where buyers or sellers are lured to secluded locations only to be robbed. For legal practitioners, this development underscores the complex interplay of consumer protection, cybercrime legislation, and common law principles in addressing online fraud. The warning necessitates a renewed focus on client education regarding due diligence, understanding legal recourse, and the evolving landscape of liability in digital transactions within South Africa.

The digital marketplace, while offering unparalleled convenience and access, has become a fertile ground for sophisticated criminal activities. In a recent and significant advisory, the South African Police Service (SAPS) cautioned community members to exercise extreme vigilance when engaging in transactions on online platforms such as Facebook Marketplace and other e-commerce sites. This warning comes amidst a noticeable surge in fraud-related incidents, ranging from outright scams involving non-existent goods to dangerous physical encounters resulting in robbery.

For legal practitioners, this SAPS alert is more than just a public safety announcement; it signals a heightened need to understand and navigate the intricate legal framework governing online transactions in South Africa. Attorneys must be equipped to advise clients on preventative measures, identify potential legal recourse, and appreciate the challenges inherent in prosecuting and recovering losses from cyber-enabled fraud. This article will delve into the relevant South African statutory and common law provisions, analyze the nature of these online scams, and discuss the implications for legal professionals and their clients in an increasingly digital economy.

The legal landscape governing electronic transactions and consumer protection in South Africa is primarily shaped by three key pieces of legislation: the Electronic Communications and Transactions Act 25 of 2002 (ECTA), the Consumer Protection Act 68 of 2008 (CPA), and the more recent Cybercrimes Act 19 of 2020. ECTA serves as the foundational statute for electronic commerce, providing legal recognition to data messages and electronic signatures, and establishing rules for contract formation online. It also includes crucial consumer protection provisions, such as mandatory website disclosures for suppliers (Section 43) and a seven-day cooling-off period for consumers in distance selling, allowing cancellation without penalty (Section 44).

The CPA further bolsters consumer rights, applying broadly to most transactions within South Africa, including electronic ones. It prohibits misleading advertising (Section 29 and 30) and ensures consumers' rights regarding the quality of goods and services, including the right to return defective items within six months (Section 20 read with Section 19). Where there is an overlap or inconsistency between the CPA and ECTA, the provisions of both Acts must be applied concurrently where possible.

Complementing these, the Cybercrimes Act 19 of 2020, which commenced on 1 December 2021 for most sections, represents a comprehensive legislative response to the evolving landscape of cyber threats. It criminalises various forms of cyber-related crimes, including unlawful access, unlawful interception of data, and specifically, cyber fraud and cyber extortion. This Act provides a framework for the investigation, prosecution, and prevention of cybercrimes, with penalties including significant fines and imprisonment. Beyond statutory law, common law principles of fraud and delict also remain relevant, particularly in addressing patrimonial harm caused by online scams, though their application in cyberspace presents unique challenges.

The SAPS warning highlights several prevalent online fraud schemes. These include scenarios where victims make upfront payments for goods that are never delivered, are manipulated into transferring additional funds under false pretences, or are lured to secluded meeting points where they are subsequently robbed. Such incidents often involve 'too good to be true' deals, particularly for high-value items, and a lack of verification of seller profiles or legitimacy.

From a legal recourse perspective, victims of online fraud have avenues under both criminal and civil law. Criminally, the Cybercrimes Act 19 of 2020 explicitly addresses 'cyber fraud' and 'cyber extortion,' carrying severe penalties, including imprisonment of up to 15 years. The Act also criminalises related offences such as unlawful access to computer systems and the distribution of harmful messages. The recent conviction of Mr. Lucky Majangandile Erasmus under the Cybercrimes Act for theft of data, attempted cyber extortion, and cyber fraud demonstrates the enforceability of these provisions. Victims are encouraged to report these crimes immediately to their nearest police station or via the Crime Stop number.

Civilly, victims may pursue claims based on contract law (under ECTA and CPA) or delict for pure economic loss. However, establishing liability in delict for cyber fraud can be complex. The Supreme Court of Appeal (SCA) ruling in *Edward Nathan Sonnenberg Inc v Hawarden* [2024] ZASCA 90 is particularly instructive. The SCA overturned a High Court decision, finding that the law firm ENS did not have a legal duty to warn a property buyer about business email compromise (BEC) risks, especially since the buyer had been previously warned by her estate agent. The court emphasised the importance of personal responsibility, stating that the debtor (the person making the payment) bears the risk and has a responsibility to verify payment instructions, particularly given the known prevalence of online fraud. This judgment suggests a limited duty of care for third-party cyber fraud, placing a significant onus on individuals to protect themselves.

Challenges in prosecuting and recovering losses from online fraud are substantial. These include the ease with which digital evidence can be altered or destroyed, complex jurisdictional issues when perpetrators or data are located outside South Africa, and difficulties in attributing conduct to specific individuals. While online platforms generally have a duty to ensure accurate content, contractual limitations of liability are common. The *Hawarden* case further underscores that the liability of platforms or intermediaries for user-generated fraud may be limited, shifting greater responsibility to the transacting parties themselves.

The SAPS warning serves as a stark reminder of the persistent and evolving threat of online fraud in South Africa. For legal practitioners, it necessitates a proactive approach to advising clients on the critical importance of due diligence, verification, and exercising extreme caution in all online transactions. Clients must be educated on the practical precautions recommended by SAPS, such as meeting in public places, avoiding upfront payments without inspection, and verifying identities.

Practitioners should be well-versed in the provisions of the Cybercrimes Act for criminal recourse, and understand the nuances of civil claims under ECTA, CPA, and common law, particularly in light of recent jurisprudence like *Edward Nathan Sonnenberg Inc v Hawarden*. The challenges of cross-border jurisdiction and evidentiary burdens mean that prevention remains the most effective strategy. As the digital economy continues to expand, legal professionals must stay abreast of legislative developments and judicial interpretations to effectively guide clients through the complexities and inherent risks of online commerce, ensuring they are not only aware of their rights but also their responsibilities in safeguarding against cyber-enabled criminal activity.