users of computer-based information.50 The Model Law’s pivotal provision is article 5 on functional equivalence which stipulates that information shall not be denied legal effect, validity or enforceability solely on the ground that it is in the form of a data message, and a data message is defined in article 2(a) as information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange, electronic mail, telegram, telex or telecopy.51 It is clear from article 5 that the Model Law applies to data messages. The functional equivalence principle determines how the purpose and functions of traditional paper-based requirements, such as ‘in writing’ and signature requirements can be met to satisfy similar needs in e-commerce.52 The functional equivalence rule is achieved by establishing the essential purpose of paper-based communications and its use to determine the criteria that electronic communications should meet if they were to enjoy the same legal recognition as the corresponding paper-based communications.53 This means that functional equivalence rule is not just there for the taking. The mere fact that communication is electronic is not the only pre-requisite for its legal recognition, it should first pass the common law requirements test set for traditional paper-based contracts.54 The overriding requirement is that information must be in the form of a data message. It is trite that the Model Law does not find direct application in any legal system, however, it merely provides a legal framework on which national legislatures can base their electronic commerce legislation to facilitate greater international harmonisation. 55 It seeks to address the legal lacunae that developed as a result of technological innovations.56 The Model Law has been adapted in economic powerhouses like United States, Canada, Australia and European Union,57 and other countries 50 Kariyawasam et al (2009: 157 at 161). Fitzgerald et al (2007: 507); The UNCITRAL Guide to Enactment available at www.uncitral.org/pdf/english/texts/electcom/05-89450_Ebook.pdf (accessed 27 March 2015). 52 Papadopoulos et al (2012: 42). 53 Pistorius (2002: 129 at 134). 54 Papadopoulos et al (2012: 44). 55 Van der Merwe et al (2008: 145); Davidson (2009: 26). 56 Pistorius (2002: 131). 57 Pistorius, T. (2004) “Click-wrap and web-wrap agreements,” 16 SA Merc LJ 568; Pistorius, T. (2006) “From snail mail to e-mail: South African perspective on web of conflicting rules on the time of e-contracting rules” 39 CILSA 178 at 190-198. 51 6