Consumer Protection Act
Until now Consumer protection has remained largely unregulated with scattered and fragmented pieces of legislation, which has resulted in a lack of basic Consumer rights, an inadequate Consumer voice and continuous exploitation of Consumers.
The Consumer Protection Act spells out the rights of the Consumer and the responsibilities of the supplier. South Africa emulates many first-world countries and aligns itself with the United Nations and the European Union guidelines on Consumer protection by codifying a common law for Consumer rights.
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Please note that is only as a brief summary of the main provision of the Code and should not be relied upon as a legal document. There are many other provisions and exemptions under the Code. For more detailed information and the full Code please download the Code of Banking Practice.
On 1 April 2011, the South African National Consumer Protection Act, 68 of 2009, came into effect. The Consumer Protection Act (CPA) aims to “promote fairness, openness and good business practices between suppliers of goods and services and Consumers of these goods and services”.
The CPA is the result of the Department of Trade and Industry’s (dti) intention to “create and promote an economic environment that supports and strengthens a culture of Consumer rights and responsibilities”. The Consumer Protection Act excludes all agreements before 1 April 2011, but all suppliers of goods and services after this date need to comply with the CPA.
DOWNLOAD FULL ACT
Please note that is only as a brief summary of the main provision of the Code and should not be relied upon as a legal document. There are many other provisions and exemptions under the Code. For more detailed information and the full Code please download the Code of Banking Practice.
The Consumer Protection Act does this by, amongst others, creating a legal framework to foster a fair, accessible and efficient marketplace for Consumers; reducing the difficulties vulnerable Consumers experience when accessing goods or services; protecting Consumers from unfair trade practices; encouraging responsible Consumer behaviour; advancing Consumer empowerment and providing an efficient system of redress for Consumers; and consolidating and replacing existing Consumer protection.
DOWNLOAD FULL ACT
Please note that is only as a brief summary of the main provision of the Code and should not be relied upon as a legal document. There are many other provisions and exemptions under the Code. For more detailed information and the full Code please download the Code of Banking Practice.
THE CONSUMER
An individual or Juristic persons (a legal entity with turnover or assets below R2 million) to whom goods or services are marketed, who has entered into transactions with suppliers, users of particular goods or recipients/beneficiaries of services.
THE SUPPLIER
A business or other organisation that operates in South Africa as a supplier of goods or services. Goods include any tangible objects or intangible products and legal interest in immovable property. Services include any work or undertaking performed by one person for the direct or indirect benefit of another, counsel, financial services, assumption of risk, transport and the provision of accommodation, sustenance or similar services.
DOWNLOAD FULL ACT
Please note that is only as a brief summary of the main provision of the Code and should not be relied upon as a legal document. There are many other provisions and exemptions under the Code. For more detailed information and the full Code please download the Code of Banking Practice.
THE CONSUMER PROTECTION ACT GIVES NINE RIGHTS TO CONSUMERS:
Consumer Right No. 1: Right to Equality in the Consumer Market and Protection against Discriminatory Marketing Practices
- Consumer Right No. 2: Right to Privacy
- Consumer Right No. 3: Right to Choose
- Consumer Right No. 4: Right to Disclosure of Information
- Consumer Right No. 5: Right to Fair and Responsible Marketing
- Consumer Right No. 6: Right to Fair and Honest Dealing
- Consumer Right No. 7: Right to Fair, Just and Reasonable Terms and Conditions
- Consumer Right No. 8: Right to Fair Value, Good Quality and Safety
- Consumer Right No. 9: Right to Accountability from Suppliers
DOWNLOAD FULL ACT
Please note that is only as a brief summary of the main provision of the Code and should not be relied upon as a legal document. There are many other provisions and exemptions under the Code. For more detailed information and the full Code please download the Code of Banking Practice.
The Consumer Protection Act does not contain a provision for information to be in an official language. However, it does require information to be in plain and understandable language. The CPA also requires that the language for goods or services be appropriate to the target group.
MARKETING STANDARDS
The Consumer Protection Act deals with marketing by promoting marketing standards, restricting unwanted marketing and prohibiting discriminatory marketing. Marketing efforts must be factual and accurate and may not mislead the Consumer in any way. This includes information distributed by third parties engaged in business. These standards are applied to a broad based of “unconscionable” marketing, and require a range of marketing techniques to fully disclose validity, availability and limitations. The CPA also enables pre-emptive blocking of email, phone or printed direct marketing.
COOLING-OFF PERIODS
The Consumer Protection Act provides a five business day cooling-off period for transactions that come from direct marketing i.e. transactions not initiated by the Consumer, but includes both verbal and written agreements. The five business day period will commence after the day on which the transaction or agreement was concluded, or the day on which the goods or services were delivered to the Consumer. The Consumer has the right to cancel without reason or penalty, by notice to the supplier in writing, or another recorded manner and form. This applies to bookings and reservations, but the Consumer may be liable for a “reasonable charge”.
FIXED-TERM CONTRACTS
The Consumer Protection Act regulates the term, renewal and cancellation of fixed-term contracts. The Act prevents the automatic renewal of a fixed term contract, the Consumer has the responsibility to terminate or renew the contract. If the Consumer fails to renew or terminate, the contract will continue on a month on month basis on the new terms as notified by the supplier. Consumers can also cancel a contract before the term by providing a 20 day notice, but will be liable for “a reasonable cancellation penalty”.
OVERSELLING AND OVERBOOKING
The CPA provides for the “reasonableness” test for overselling and overbooking. A supplier may not accept payment for goods or services if it has no reasonable intention to supply the goods or services, or if it intends to supply goods or services that are materially different to those the Consumer has paid for. The supplier can be penalised if they fail to deliver goods, services or reservations for which they have accepted payment. However, the supplier will not be penalised if similar goods or services are offered, or if circumstances beyond the suppliers control lead to the breach and the supplier took reasonable steps to inform the Consumer.
IMPLIED WARRANTY OF QUALITY
The Consumer Protection Act provides for an implied warranty of quality. In terms of this warranty the producer/importer, distributor and retailer each warrant that the goods comply with the requirements and standards outlined in the CPA. Failed, unsafe or defective goods may be returned to the supplier within six months after the delivery of the goods to a Consumer. The Consumer has the choice to be refunded, or have the goods replaced or repaired.
PREPAID CERTIFICATES, CREDITS AND VOUCHERS
The Consumer Protection Act states that gift or similar vouchers expire either upon redemption or after three years, which prevents vouchers under the CPA from expiring within a couple of months of issue, and before Consumer has the opportunity to use them. In addition, the CPA provides that Consumer payment for prepaid vouchers are the property of the bearer until such time and to the extent that the voucher is redeemed.
DOWNLOAD FULL ACT
Please note that is only as a brief summary of the main provision of the Code and should not be relied upon as a legal document. There are many other provisions and exemptions under the Code. For more detailed information and the full Code please download the Code of Banking Practice.
ENFORCEMENT AND CONSEQUENCES OF NON-COMPLIANCE
The Consumer Protection Act provides protection and recourse where Consumer rights have been violated. Like the National Credit Act established the National Consumer Tribunal, the CPA establishes the National Consumer Commission to enforce the provisions of the CPA, and to ensure Consumers are educated and well-informed of his or her rights. The Consumer Protection Act provides for quick and effective complaint resolution for both Consumer and businesses. Non-compliance sanctions include fines, imprisonment for 12 months or in the case of private information disclosure, imprisonment for 10 years. The Act also makes provision for administrative penalties with a maximum limit of 10% of turnover or R1m.
CONSUMER COMPLAINTS
The CPA provides that Consumers, interested persons on behalf of the Consumer and Non-Governmental Organisations with public interest cases on behalf of the Consumer can make complaints. The Act provides for Special legal remedies such as:
- Class actions
- Damages
- Discrimination complaints may be brought to both the Equality Court and the National Consumer Commission for referral to the Equality Court
COMPLAINT PROCEDURE
Consumers are encouraged to find resolutions to their complaints with the supplier first. Failing satisfactory resolution of the complaint, the matter is to be referred to a Dispute Resolution Agent. The National Consumer Commission will refer minor matters to Provincial Offices who will escalate the matter to Provincial Consumer Courts. Only as a last resort will the Commission/Tribunal resolve individual complaints. Finally, cases are investigated by the National Consumer Commission and referred to the Consumer Tribunal. The Consumer Tribunal has the authority to declare the CPA contravened, order changes in practice, impose administrative fines and interdict future prohibited practices.
WHERE TO COMPLAIN
The Consumer Protection Act established the National Consumer Commission to investigate complaints, and the National Consumer Tribunal, which was created by the National Credit Act in September 2006, which is responsible for adjudication of violations and transgressions of the National Credit Act and the Consumer Protection Act.
National Consumer Commission (NCC)
Mail: Private Bag x84
Pretoria CBD
Pretoria
0001
South Africa
Street:The DTI Campus, Mulayo (Block E)
77 Meintjies Street
Sunnyside
Pretoria
Gauteng
Tel: +27 86 026 6786
Fax: +27 86 151 5229
Website: www.thenct.org.za
NATIONAL CONSUMER COMMISSION (NCC)
National Consumer Tribunal (NCT)
Mail:Private Bag X110
Centurion
Pretoria
0046
South Africa
Street: Ground floor, Block B
Lakefield Office Park
272 West Avenue
c/o West and Lenchen North
Centurion
Gauteng
Tel: +27 12 663 5615
Fax:+27 12 663 5693
Website: www.thenct.org.za
NATIONAL CONSUMER TRIBUNAL (NCT)
Department Of Trade and Industry
Mail: Private Bag X84
Pretoria CBD
Pretoria
0001
South Africa
Street: Block A 3rd Floor
77 Meintjies Street
Sunnyside
Pretoria
Gauteng
Tel:+27 861 843 384
Fax: +27 861 843 888
Website: www.thedti.gov.za
Please note that is only as a brief summary of the main provision of the Act and should not be relied upon as a legal document. There are many other provisions and exemptions under the legislation. For more detailed information and the full Act please visit the National Consumer Commission website.
DOWNLOAD FULL ACT
Please note that is only as a brief summary of the main provision of the Code and should not be relied upon as a legal document. There are many other provisions and exemptions under the Code. For more detailed information and the full Code please download the Code of Banking Practice.