Tjaart de Beer

The playing field between the supplier and consumer has been levelled on 31 March 2011 when the Consumer Protection Act No. 68 of 2008 (“the Act”) came into effect.  There are many examples of victories by the vulnerable consumer against the typical conniving supplier to attest to the success envisioned by the purpose of the Act.

The Act’s main purpose is to “promote a fair, accessible and sustainable marketplace for consumer products and services and for that purpose to establish national norms and standards relating to consumer protection, to provide for improved standards of consumer information, to prohibit certain unfair marketing and business practices, to promote responsible consumer behaviour, to promote a consistent legislative and enforcement framework relating to consumer transactions and agreements”[1].

The Act also established channels to promote access to justice and enforcing the rights as consumer through making the process less expensive, whereby the consumer can institute a claim against a supplier, on its own efforts.  These channels are prescribed by section 69 of the Act, and are:

  1. referring the matter directly to the Tribunal, if such a direct referral is permitted by this Act in the case of the particular dispute;
  2. referring the matter to the applicable ombud with jurisdiction, if the supplier is subject to the jurisdiction of any such ombud;
  3. if the matter does not concern a supplier contemplated in paragraph (b)—
  • referring the matter to the applicable industry ombud, accredited in terms of section 82 (6), if the supplier is subject to any such ombud; or
  • applying to the consumer court of the province with jurisdiction over the matter, if there is such a consumer court, subject to the law establishing or governing that consumer court;
  • referring the matter to another alternative dispute resolution agent contemplated in section 70; or
  • filing a complaint with the Commission in accordance with section 71;

Access to the courts is provided for by Section 69(d), however, only after all other remedies available to that consumer, in terms of any relevant legislation, has been exhausted.

Section 52 of the Act lays out the powers of the court to ensure fair and just conduct, terms and conditions.  This can only be done under the proviso that the supplier contravened sections 40 – Unconscionable conduct, 41 – False, misleading or deceptive representations, or 48 – Unfair, unreasonable or unjust contract terms, and the Act does not otherwise provide a remedy sufficient to correct the relevant prohibited conduct, unfairness, injustice or unconscionability[2].

The merits will differ in every matter and therefore, without delving into too much detail regarding the merits and apart from faulty, unsafe or bad quality goods, another common denominator can be the cause of action and the reason why a consumer is taking action against supplier and this is established by the content of the agreement between them.

It should however be noted that with an agreement, both the consumer and the supplier have to be cautious. The consumer has to look out for the conditions of sale which are against public policy. A consumer will however be protected by a court if such conditions are indeed found to be unfair and unjust, but it will cost the consumer time and money to get clarity on such matters. It would thus be in the interest of both parties not to haste into such contracts, to discuss same with an attorney beforehand and to avoid being cornered into a “take-it-or-leave-it” situation that might have detrimental ramifications.

The reason why one should be mindful of this is that the courts will still want to honour the sanctity that is the freedom to contract and will also apply it within the principles and “the founding provisions of our Constitution[3][4].  This was seen in the case of Naidoo v Birchwood Hotel[5] where the application of these principles was applied as formulated in Barkhuizen v Napier[6].  This is important as the Constitution is supreme law and all other legislation has to be in-line with the Constitution in order to be lawful.

Overall, the Act attempts to protect both the consumer and the supplier to level the playing field and to promote fairness in the marketplace minimising the exploiting of vulnerable consumers.  If such exploits do occur, the Act provides for the procedures and channels to follow in order to have justice be done.

The Act was, as mentioned above referring to the purpose of the Act, to be just that, a promotion, if not extension, of the spirit, purport and objects of the Bill of Rights. It therefore contains provisions to which suppliers must heed to comply. It would therefore be a good idea to approach an attorney, if you are a supplier, to make sure your conditions of sale are all in check.

  • [1] From the introduction of the Consumer Protection Act No. 68 of 2008.
  • [2] Section 52(1)(b) of the Act.
  • [3] Constitution being the Constitution of the Republic of South Africa, 1996.
  • [4] visited on 2019-01-31 at 23:21.
  • [5] 2012 6 SA 170 (GSJ)
  • [6] 2007 (5) SA 323 (CC)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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