South African ICT law is still immature and it will take between two to five years for it to become a fully productive element within the sector and the business community, says ICT lawyer Lance Michalson.
Michalson was speaking to reporters at the Gartner Symposium ITxpo in Cape Town yesterday. He has analysed the country`s ICT laws using the US research firm`s hype cycle methodology.
According to Michalson, most of the country`s ICT laws, including the Electronic Communications and Transactions Act, the Regulation and Monitoring of Information and Communications Act, the Convergence Bill and various documentation standards, have barely made it past the "trigger stage".
In terms of the Gartner methodology, a new technology or issue first goes through the "trigger stage" to the "peak of inflated expectations", then descends into the "trough of disillusionment", before recovering onto the "slope of enlightenment" to the "plateau of leadership".
The hype cycle is designed to demonstrate initial enthusiasm and over-expectations to the realistic use of a technology or issue.
Michalson`s analysis took into account the primary ICT laws and some foreign regulation such as the US Sarbanes-Oxley Act and the EU Privacy Directive. He also took into account the King Commission`s second corporate governance report and the deliberations surrounding the drafting of a privacy law.
The analysis discarded the more than 900 clauses in other laws that deal with document retention.
"A major problem is that most of the South African laws have not been tested in court yet. Particularly dealing with privacy. The fact is that no one wants to become a test case."
Michalson says while Parliament drafts the laws and the presidency enacts them, it is the courts that interpret them.
"No court has not yet rejected a document on the basis that it is an electronic document and not paper-based. Courts often reject documentation as evidence for various reasons, but this has not happened yet with an electronic document."
Michalson says drafting and amendments to local laws are also being influenced by foreign legislation, some of which requires that information can only be passed to countries that have similar privacy safeguards.
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