The new Consumer Protection Act: An Overview (Part 3)

This is the last part of the series on the Consumer Protection Act, covering in particular sections 48 to 79.

 

Contract terms

The CPA contains wide-ranging prescriptions aimed at eliminating unfair, unreasonable or unjust contract provisions and ensuring that special notice is given to the consumer in respect of various terms which may appear to be unusual or disadvantageous to the consumer. Sections 48 and 49 of the CPA will prevent suppliers from limiting their liability or obtaining indemnification against claims from the consumer. While these restrictions even the playing fields, it may ultimately lead to increased transaction costs for the consumer since the supplier will have to factor in higher provisions for possible returns and insurance costs when determining its prices. The supplier may also not include anything in its standard terms and conditions which purports to limit or circumvent the applicability of the CPA.

Right to demand quality

Another prominent feature of the CPA is the protection of the consumer’s right to demand quality services and goods contained. The supplier must be careful to listen to the consumer’s individual requirements and the purpose for which the consumer intends to use the goods or services before concluding the sale and should ensure that such special considerations are recorded since they form a basis on which the consumer may return the goods in question. Included in such goods are also second-hand goods and the supplier of such goods will need to ensure that a proper inspection of such goods is done prior to selling same. The CPA in effect extends the common-law implied warranty against defects to importers, distributors and retailers and provides for the consumer to return any goods within six months after delivery, without penalty and at the supplier’s risk and expense. The supplier must then either, at the direction of the consumer, repair or replace the goods or refund (to the consumer) the purchase price. Section 57 provides the consumer with a warranty on any repaired part for a period of at least three months after the date of installation, ordinary wear and tear excluded.

Disposal of waste

Where the goods or any part thereof are prohibited from being put into the normal waste collection, the supplier of goods must accept return of those goods or parts thereof.

Product liability

The producer, importer, distributor or retailer of any goods is liable for any harm caused wholly or in part as a consequence of supplying any unsafe good or goods with defects or hazards or insufficient instructions, unless the unsafe product characteristic, failure, defect or hazard:

  • is wholly attributable to compliance with any public regulation;
  • did not exist in the relevant good at the time of its supply;
  • (in the case of a retailer or distributor) could not have been expected to have been discovered;
  • is wholly attributable to compliance with instructions provided by the person who supplied the goods;
  • can no longer be pursued due to prescription.

The consumer’s recourse

The consumer may not be penalised by the supplier should the former exercise any rights in terms of the CPA and the consumer has various options of raising disputes, such as with the consumer tribunal, the consumer court, the applicable ombud with jurisdiction, an industry ombud, an alternative dispute resolution agent and with the consumer commission. Certain of the aforementioned institutions can in turn refer complaints to each other and provisions are even made for special damages in some instances. The CPA also allows for accredited consumer protection groups to protect the interests of the consumer or to intervene in a matter before any forum contemplated in the CPA. How these institutions will interpret the CPA and give effect to its provisions still has to be seen and the attorney profession is eagerly awaiting the first precedents in order to give guidance with regard to the conduct of the proceedings and the applicable standards which Consumers can expect and suppliers need to guarantee.

Business names

A supplier’s choice of business name is limited to the person’s full name as recorded in an identity document or such name as may have been registered in terms of a public regulation or has been filed with the Registrar of Companies. Any non-compliance with this section could lead to a compliance notice being issued against the business at the instance of the tribunal. Non-compliance with such notice may result in an administrative fine being levied or a referral to the National Prosecution Authority.

Disclaimer: Although Hildebrand Attorneys is committed to furnishing reliable and accurate information, this article is intended as a general reference guide only and does not constitute legal advice. Hildebrand Attorneys cannot take any responsibility for the accuracy or currency of the information and if you require particular information you are advised to consult with the article’s author or a qualified legal authority. This article may not be reproduced without the express written permission of the author and Hildebrand Attorneys accepts no responsibility for any loss or damage that may be occasioned as a result of the reliance by any person on the information contained herein

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