Campbell Attorneys are specialists in The Consumer Protection Act 68 of 2008 and have assisted hundreds of clients with disputes to ensure that consumers’ rights in terms of the Consumer Protection Act 68 of 2008 are protected and enforced. Our director, Nicky Campbell, has co-authored The Consumer Protection Guide for Lawyers published by the Law Society of South Africa.
We assist consumers with finding recourse and enforcing their rights as consumers, with regards to the purchase of faulty goods, inadequate service delivery, enforcement of warranties and guaranties. Below are the key considerations when dealing with consumer complaints and obtaining recourse in terms of the Consumer Protection Act.
The purpose of the Consumer Protection Act 68 of 2008 is to achieve the following:
- To establish a legal framework for a consumer market that is fair, accessible, efficient, sustainable and responsible;
- To promote fair business practices;
- To protect consumers from unfair, unreasonable or other improper trade practices and also to protect the consumer from deceptive, misleading or other fraudulent conduct;
- To promote social, economic and environmental responsibility in consumer markets;
- To improve consumer awareness and information and to encourage responsible and informed consumer choice and behaviour;
- To promote consumer confidence and empowerment and develop a culture of consumer responsibility through individual and group education, vigilance, advocacy and activism;
- To provide a consistent, accessible and efficient system of consensual resolution of disputes arising from consumer transactions;
- To provide an accessible, consistent, harmonized, effective and efficient system of redress for consumers.
When does CPA apply?
The Consumer Protection Act applies to every transaction, agreement, advertisement, production, distribution, promotion, sale or supply of goods or services. Certain transactions are exempt. For instance, where the goods or services could not reasonably be the subject of a transaction falling within the ambit of the Consumer protection Act or where the goods or services have been exempted from the application of the Consumer protection Act (exemption requirements and procedure are set out in s5(3) and s5(4)).
When does the Consumer Protection Act not apply?
The Consumer Protection Act does not apply in the following instances:
- Goods or services promoted or supplied to the state
- A transaction that constitutes a credit agreement under the National Credit Act, but the goods or services that are the subject of the credit agreement are not excluded from the protection given by the Consumer Protection Act
- Employment contracts
- Collective bargaining agreements
- Where the Minister of Trade and Industry has given exemption to the transactions
- Where the consumer is a juristic person whose annual turnover or asset value exceeds or equals R1 000 000.00
What are Goods and Services under the Consumer Protection Act?
Which “goods” does the Consumer Protection Act apply to?
“Goods” include –
- Anything marketed for human consumption;
- Any tangible object, including any medium on which anything is or may be written or encoded;
- Any literature, music, photograph, motion picture, game, information, data, software, code or other intangible product, or a licence to use any such intangible product;
- A legal interest in land or any immovable property, other than an interest that falls within the definition of “service” in this section; and
- Gas, water and electricity.
Which “services” does the Consumer Protection Act apply to?
“Services” include, but are not limited to:-
- Any work or undertaking performed by one person for the direct or indirect benefit of another;
- The provision of any education, information, advise or consultation, except advise that is subject to regulation in terms of the Financial Advisory and Intermediary Services Act;
- Any banking services, or related similar financial services, or the undertaking, underwriting or assumption of risk by one person on behalf of another, except services that constitute advise or intermediary services that are regulated by the Financial Advisory and Intermediary Services Act, or services that are regulated by the Long-Term and Short-Term Insurance Acts;
- The transportation of an individual or any goods;
- The provision of accommodation or sustenance;
- The provision of entertainment or similar intangible product or access to such entertainment or other intangible product;
- The provision of access to any electronic communication infrastructure;
- The provision of access, or a right of access, to an event or to any premises, activity or facility;
- The provision of access to or use of premises or other property in terms of a rental agreement;
- The provision if a right of occupancy of, or power or privilege over any land or other immovable property, other than in terms of a rental;
- The provision of the rights of a franchisee in terms of a franchise agreement.
Which “transactions” does the Consumer Protection Act apply to?
- Agreements between or among persons for the supply or potential supply of goods or services in exchange for consideration;
- The supply of goods to or at the direction of a consumer for consideration;
- The performance by, or at the direction of a person acting in the ordinary course of business, of any services for or at the direction of a consumer for consideration;
- The supply of goods or services to a franchisee in terms of a franchise agreement;
- A franchise agreement or a supplementary agreement to a franchise agreement;
- A solicitation to enter into a franchise agreement;
- The supply of goods or services in the ordinary course of business to any of its members by a club, trade union, association, society or other collectivity, irrespective of whether there is a charge or other economic contribution demanded or expected in order to become or remain a member of that entity.
The Consumer Protection Act entrenches the following fundamental consumer rights:
- The right to equal access to the consumer market and protection against discriminatory marketing
- Right to privacy and he right to restrict unwanted marketing
- The consumer’s right to choose which includes the consumer’s right to select suppliers, cancel fixed-terms agreements and cancel advance reservations, bookings or orders.
- The consumer’s right to disclosure and information, including the right to information in plain and understandable language, the right to be given a sales record and full disclosure of the price of any goods or services.
- The right to fair and responsible marketing and promotion;
- The right to honest dealing and fair agreements which in turn prohibits any supplier from using physical force against a consumer, coercion, undue influence, pressure, duress or harassment or any other unfair tactics when marketing goods or services or when demanding or collecting payment for goods or services.
- The right to fair value, good quality and safety which includes the consumer’s right to demand quality service as well as the right to safe, good quality goods that are usable for a reasonable period. An important extension of this right is the implied warranty of quality given by the retailer that the goods will be safe and of a good quality for a minimum period of six months.
Enforcement of the Consumer Protection Act
The Consumer Protection Act stipulates who may approach a court, the National Consumer Tribunal or the National Consumer Commission to enforce the rights bestowed in the Consumer Protection Act. Only the following persons may do so:
- A person acting on his or her own behalf;
- An authorized person acting on behalf of another person who cannot act in their own name;
- A person acting as a member of, or in the interest of, a group or class of affected persons;
- A person acting in public interest with the leave of the Tribunal or court;
- An association acting in the interest of its members.
Where a matter is brought before a court, the court is empowered to develop the common law as necessary in a bid to improve “the realisation and enjoyment of consumer rights generally.” (Section 4(2)(a)). The National Consumer Tribunal and court when adjudicating any matter, are bound to promote the spirit and purposes of the Consumer Protection Act, and to give practical effect to the consumer rights entrenched in the Consumer Protection Act. Such practical effect shall be seen in the issue of orders provided for in the Consumer Protection Act and any other “innovative order” that enhances the realisation of the consumer’s rights.