The regulations under the Consumer Protection Act are expected to be published next month shortly before the commencement of the act on April 1. The regulations will throw more cats among more pigeons.

For instance, the draft regulations list over 30 contract terms that will be presumed to be unfair and unreasonable. An unfair term is void and may also lead to a complaint of non-compliance with the Consumer Protection Act. Some of the provisions are so obvious (such as unfair penalties) or so egregious (for example, giving the supplier the exclusive right to interpret the agreement) that they will probably not affect most suppliers. There are others that are common terms of agreements (for example, time-bars and the right to assign) so that the prohibition will affect millions of agreements throughout the country.

Every supplier is going to have to run one finger down their standard documents and the other finger down the regulations as soon as possible after the regulations are issued to ensure that their agreements are compliant. Some of the draft regulations are over-broad and will have wide-ranging and unexpected consequences; others will interfere with fundamental rights such as the right to go to independent and impartial arbitration. It is hoped that these requirements will be refined when the final regulations are published.

The franchise industry and auctioneers will have to perform the same exercise. There are many provisions in the regulations about the contents of franchise agreements. The rules for conducting auctions span 15 pages of the gazetted draft regulations. These include provisions (probably impermissible) regarding personal liability for auctioneers. Any corporation that is accustomed to auctioning off any of its property (perhaps its second-hand vehicles) would be well-advised to call in professional auctioneers.

There has been a lot of excitement in the marketplace about the proposed registry in which a consumer can indicate that he or she does not wish to receive any material related to direct marketing. This will not affect only direct marketing companies. Everyone who does business by distributing catalogues or pamphlets or by telephone or cold canvass will be affected. The final decision has not been made whether consumers must be presumed to have opted in or to have opted out of the register. The only rational way is to forbid a direct approach only to those consumers who have specifically opted not to receive a certain form of direct marketing. The good news is that the register will not be in place from April 1. The registry has to be set up by the commission, approved by an independent auditor and then put in place by the Minister. This will take a long time and the register is not, as is commonly believed, an immediate burden on direct marketing. From April however there will be set times when suppliers of goods and services cannot approach consumers at home. It will be forbidden to engage in direct marketing at a person's home other than on weekdays from 07h00 to 20h00 and during certain hours on a Saturday morning.

The regulations make major inroads into promotional competitions. All those competitions entered by way of sms will be controlled and the cost of the sms will be regulated. Detailed records will have to be kept of the way in which the competition is conducted and the prizes awarded. The regulations will change the face of profit-making promotional competitions and stop many in their tracks where high-cost sms's give little hope of winning modest prizes.

It is a pity we will not be given more time to absorb and implement the requirements of the legislation. Nonetheless, in the early stages of the legislation, the regulatory authorities are likely to take a benevolent attitude to people who are seriously engaged in getting their systems right. That is motivation enough to begin your compliance programme as soon as you stop reading this article. At least you will be able to put a bell on some of the cats.

This article first appeared in Business Day.

Written by Patrick Bracher, Director at Deneys Reitz Attorneys