After the much anticipated commencement date of the Consumer Protection Act, 2008 (CPA) on 1 April 2011, the eroded landscape of commercial and marketing practices in South Africa has been drastically remoulded. Despite the hype amongst the likes of practitioners, academics and students in the legal profession, the consumer is the ultimate focal point of this new legislation. The CPA may be hailed as an attempt by our Department of Trade and Industry and Parliament to reform the statutory and common law landscape that disfavoured the consumer historically under the rigid Roman Dutch law framework of purchase and sale.
The Act however extends and even encroaches far beyond the realms of the law regulating the purchase and sale of goods. The law protects the consumer against unfair marketing practices. Traditionally, our common law only acknowledged fraudulent misrepresentation as grounds for rescission of a contract of sale. Our law even vaguely and ominously allows exaggeration of the qualities of a product by a seller, or so-called puffing.
Metaphorically speaking, the CPA now curbs the nose of the Pinocchio-seller. Many suppliers can be compared to Pinocchio. Carved by a woodcarver named Geppetto, Pinocchio is a fictional character who is prone to telling lies and fabricating stories for various reasons. In our commercial landscape, sellers have various but mostly financial considerations to fabricate stories or tell lies to a consumer.
A consumer must remember that before he or she can cry wolf, the Act must first apply to the transaction. Private sales and transactions where a person does not act in the ordinary course of his or her business are exempt from the application of the Act.
Here is a short summary of some relevant provisions in the CPA:
Whenever a consumer is entering into a written agreement, he or she has the right to have it drafted in plain and understandable language. If the consumer does not know or understand any phrase in the documents, as legal jargon can be intimidating, consumers have the right to insist on an explanation of the terms and conditions therein. It is diligent for a consumer to rather ask before signing a document, as our common law is still inclined to hold a person bound to a document he or she has signed without reading the terms! In order for the Act to assist a consumer, a consumer must err on the side of caution and ask for advice or refuse to sign a document. If a consumer is shopping and two different prices are displayed or items are incorrectly labeled and a higher price is charged at the till, the consumer is entitled to the lower price charged. Be on the lookout for those price tags!
No bait marketing is allowed! After all, a consumer is not a fish to be reeled in. A seller may not advertise goods at an attractive price to merely lure the consumer into the store to purchase other stock, as the advertised product is no longer available.
No negative option marketing is allowed. A seller may not dictate to the consumer that unless the consumer indicates otherwise and declines the offer by the seller, a contract will come into existence.
Grey market goods must be disclosed. Grey goods are goods which are imported or distributed by a seller or importer who is not authorized to distribute such goods. The consumer further has the right to know that the grey goods carry no warranty.
Promotional competitions must be above board! A supplier may not inform the consumer that he or she has won a prize if there was never a competition or the consumer never entered a competition. The consumer may not be required to pay an additional fee or complying with any further conditions. Promotional competitions must be overseen by an independent auditor or other professional.
The consumer has the right not to be harassed by telemarketers. If a consumer has opted out of any direct marketing activities, a consumer may not be contacted at home between 20:00 and 08:00 on weekdays, before 09:00 and after 13:00 on a Saturday, or at any time on public holidays and Sundays. Direct marketing by means of electronic communication such as emails received by consumers outside of these time frames are also not allowed.
The consumer has recourse against a supplier. Although it may seem futile to some, the heart of consumer activism lies firmly in the grip of the consumer, and it is incumbent upon the consumer to counteract unscrupulous or non-complacent suppliers.
If the marketing of goods or services did not comply with the Act, the consumer may file a complaint with the National Consumer Commission (NCC) and there may be penalties against the supplier.