Running an online marketplace: platform terms, sellers and liability

November 11, 2026

Online marketplaces connect buyers with third-party sellers, service providers or hosts, and take a commission or fee for doing so. In South Africa they range from large retail and food delivery platforms to niche marketplaces for second-hand goods, freelancers, holiday rentals and B2B supplies.

A marketplace sits in a legally awkward position. It does not usually own the goods or provide the service, but customers see its brand, pay through its checkout and complain to it when things go wrong. Sellers depend on it for access to customers and are bound by terms the platform writes. Regulators increasingly look at both relationships.

In February 2026 the Competition Commission published its final Guidance Note for Online Intermediation Platforms, which sets out how it will assess conduct by platforms with market power towards the businesses that sell through them. Even smaller platforms should take note, because the Note signals what the Commission considers fair. This article explains the main legal issues and what your platform terms should cover.

Two sets of terms, two relationships

A marketplace usually needs at least two contracts:

buyer terms, which govern how customers use the platform, place orders, pay, and resolve problems; and
seller terms, which govern how sellers list, price, fulfil orders, pay commission, and handle returns and complaints.

Both should be consistent with each other and with the platform’s privacy policy and any returns policy. A common mistake is to promise customers something in the buyer terms, such as a refund within a set time, without imposing a matching obligation on sellers.

Is the platform the seller?

The most important question is who the customer contracts with. Most marketplaces are designed so that the contract of sale is between the buyer and the seller, with the platform acting as an intermediary or agent. The terms should say this clearly, and the platform’s checkout, invoices and marketing should match. If the platform presents itself as the supplier, for example by issuing invoices in its own name or setting the price and terms, it may be treated as the supplier.

That matters because the Consumer Protection Act 68 of 2008 (CPA) places obligations on suppliers, including the right to return defective goods and the implied warranty of quality. Under section 61, liability for harm caused by unsafe or defective goods can attach to the producer, importer, distributor and retailer. Whether a marketplace falls into one of these roles depends on how it actually operates, not only on what its terms say. Platforms that hold stock, fulfil orders or sell their own products alongside third-party goods carry more risk.

See our article on CPA compliance, returns and warranties.

Disclosure duties under ECTA

The Electronic Communications and Transactions Act 25 of 2002 (ECTA) requires suppliers who sell to consumers online to disclose specified information on their websites, including their identity, contact details, a description of the goods or services, the full price, the payment and delivery terms, and the cooling-off right. Consumers generally have a seven-day cooling-off period for online purchases, subject to exceptions.

On a marketplace, each seller is a supplier with these obligations. The platform should require sellers to provide accurate information and should build the required disclosures into the listing and checkout process. It should also use secure payment systems, which ECTA requires of online suppliers. Our guide to the legal requirements for online stores covers these in detail.

Liability for sellers’ content and listings

Marketplaces host content they do not create: product descriptions, images, reviews and messages. If a listing infringes a trade mark, sells counterfeit goods or makes a false claim, the rights holder or consumer may look to the platform.

Chapter XI of ECTA limits the liability of service providers that host or transmit information, provided they meet certain conditions. One key condition is membership of an industry representative body recognised by the Minister and adherence to its code of conduct. The hosting protection also depends on removing unlawful material promptly once the platform has notice of it, including through the statutory take-down notification process. Not every marketplace will qualify, so the terms and internal processes should not rely on this protection alone.

Practical safeguards include:

seller warranties that their goods and listings are lawful and do not infringe third-party rights;
an indemnity from sellers for claims arising from their goods or content;
a clear notice and take-down procedure for rights holders and users; and
the right to suspend listings or accounts quickly.

Fair terms for sellers: the Competition Commission’s guidance

The Guidance Note was issued under section 79 of the Competition Act 89 of 1998. It is not binding law, but the competition authorities must take it into account. It is aimed mainly at platforms with market power, assessed with reference to factors such as the platform’s significance to business users and network effects, and sets no fixed size threshold.

The conduct the Note highlights includes:

price parity clauses that stop sellers offering lower prices elsewhere, with wide clauses covering rival platforms viewed as particularly concerning;
self-preferencing, where a platform that also sells its own products favours them in rankings or fees;
using sellers’ competitively sensitive data to compete against them;
differentiated trading terms that disadvantage small businesses and historically disadvantaged persons; and
unfair terms, such as one-sided risk allocation, unclear terms, steep unexplained fee increases, exclusivity requirements, long lock-ins and the absence of a dispute resolution mechanism.

Even a platform without market power benefits from clear, balanced seller terms. They reduce disputes, help attract sellers, and position the platform well if it grows.

Payments and money held for sellers

Many marketplaces collect payment from buyers and pay sellers later, after deducting commission. Holding and paying out third-party money can raise regulatory questions under the National Payment System Act 78 of 1998 and banking law. Most platforms address this by using a regulated payment service provider and structuring the flow of funds carefully. See our article on payments businesses and the National Payment System Act.

Personal information

Marketplaces process personal information of both buyers and sellers, and often share it between them to complete orders. The Protection of Personal Information Act 4 of 2013 (POPIA) requires a lawful basis for processing, appropriate security, and limits on further use. The terms should regulate what sellers may do with buyer information, prohibiting use for unrelated marketing without consent.

Checklist for your platform terms

State clearly who the contracting parties are for each sale.
Align buyer terms, seller terms, the returns policy and the privacy policy.
Require sellers to provide ECTA-compliant information and to honour CPA rights.
Include seller warranties, indemnities and a notice and take-down procedure.
Set out fees, ranking factors and changes to terms transparently, with reasonable notice.
Avoid wide price parity clauses and unjustified exclusivity.
Provide a dispute resolution process for buyers and sellers.
Use a regulated payment partner and document the flow of funds.
Regulate sellers’ use of buyer personal information.
Review your terms whenever your business model changes.

How O’Reilly Law can help

We draft and review buyer terms, seller agreements and privacy policies for online marketplaces and e-commerce businesses. We advise on CPA, ECTA and POPIA compliance, payment structures, intellectual property take-down procedures and the competition law implications of platform terms.

Contact us to review or prepare your marketplace terms.

This article is general information and not legal advice. Correct as at November 2026.