THE CONSUMER PROTECTION ACT OVERVIEW 1 THE PURPOSE OF THE ACT - - PDF document
THE CONSUMER PROTECTION ACT OVERVIEW 1 THE PURPOSE OF THE ACT TO PROHIBIT UNFAIR MARKETING AND BUSINESS PRACTISES; TO PROTECT CONSUMERS FROM UNCONSCIONABLE, UNFAIR, UNREASONABLE, UNJUST, IMPROPER TRADE PRACTISES; IMPROVING
1
UNREASONABLE, UNJUST, IMPROPER TRADE PRACTISES;
ENCOURAGING RESPONSIBLE AND INFORMED CONSUMER CHOICE AND BEHAVIOUR.
2
VOID;
WITH VARIOUS NEW RIGHTS;
CONSUMERS INCLUDING ACCOUNTABILITY, TRANSPARANCY, STRICT LIABILITY;
LIABLE FOR A FINE OR TO IMPRISONMENT;
TURNOVER COULD BE IMPOSED IN RESPECT OF PROHIBITED OR REQUIRED CONDUCT.
3
SUPPLY ) OF GOODS OR SERVICES ENTERED INTO IN THE ORDINARY COURSE OF BUISNESS, OCCURRING WITHIN THE REPUBLIC, (UNLESS EXEMPTED);
PROMOTION OF THE SUPPLY OF ANY GOODS OR SERVICES, WITHIN THE REPUBLIC OF SOUTH AFRICA.
4
5
OUTSIDE THE REPUBLIC;
ORGAN OF STATE, AN ENTITY OWNED OR DIRECTED BY AN ORGAN OF STATE, A PERSON CONTRACTED OR LICENSED BY AN ORGAN OF STATE TO OFFER OR SUPPLY ANY GOODS OR SERVICES, OR IS A PUBLIC-PRIVATE PARTNERSHIP (APPLICATION OF THE ACT ON ALL MUNICIPALITIES OTHER THAN HIGH CAPACITY MUNICPALITIES HAS BEEN DEFERRED); OR
REGULATION TO MAKE THE SUPPLY OF THE PARTICULAR GOODS OR SERVICES AVAILABLE TO ALL OR PART OF THE PUBLIC.
PERSON WITH ASSET VALUE OR ANNUAL TURNOVER EQUAL TO OR EXCEEDING TWO MILLION RAND;
WHICH CONSTITUTE CREDIT AGREEMENTS UNDER THE NATIONAL CREDIT ACT, BUT THE GOODS OR SERVICES THAT ARE THE SUBJECT OF THE CREDIT AGREEMENT ARE NOT EXCLUDED FROM THE AMBIT OF THIS ACT;
CONTRACT.
6
7
MARKETED IN THE ORDINARY COURSE OF THE SUPPLIERS BUSINESS;
WITH A SUPPLIER IN THE ORDINARY COURSE OF THE SUPPLIER’S BUSINESS (UNLESS THE TRANSACTION IS EXEMPTED AS STATED BEFORE);
(IRRESPECTIVE OF WHETHER THAT PERSON WAS A PARTY TO THE TRANSACTION OR PAID FOR THE GOODS OR SERVICES);
WHO MARKETS, PROMOTES OR SUPPLIES GOODS OR SERVICES.
HIRE IN THE ORDINARY COURSE OF BUSINESS FOR CONSIDERATION;
TO PERFORM OR CAUSE THEM TO BE PERFORMED OR PROVIDED, OR TO GRANT ACCESS TO ANY PREMISES, EVENT, ACTIVITY OR FACILITY IN THE ORDINARY COURSE OF BUSINESS FOR CONSIDERATION.
8
OR SERVICES IN THE ORDINARY COURSE OF BUSINESS TO ALL OR PART OF THE PUBLIC FOR CONSIDERATION;
COURSE OF BUSINESS THAT COULD REASONABLY BE INFERRED AS EXPRESSING A WILLINGNESS TO SUPPLY ANY GOODS OR SERVICES FOR CONSIDERATION;
COURSE OF BUSINESS THAT MAY REASONABLY BE CONSTRUED TO BE AN INDUCEMENT OR ATTEMPTED ENDUCEMENT TO A PERSON TO ENGAGE IN A TRANSACTION.
9
TRANSACTION MEANS
COURSE OF BUSINESS:- AN AGREEMENT BETWEEN OR AMONG THAT PERSON AND ONE OR MORE OTHER PERSONS FOR THE SUPPLY OR POTENTIAL SUPPLY OF ANY GOODS OR SERVICES IN EXHANGE FOR CONSIDERATION; OR THE SUPPLY BY THAT PERSON OF ANY GOODS TO OR AT THE DIRECTION OF A CONSUMER FOR CONSIDERATION; OR THE PERFORMANCE BY, OR AT THE DIRECTION OF, THAT PERSON OF ANY SERVICES FOR OR AT THE DIRECTION OF A CONSUMER FOR CONSIDERATION; OR FRANCHISES
10
WHICH ANYTHING IS OR MAY BE WRITTEN OR ENCODED;
PICTURE, GAME, INFORMATION, DATA, SOFTWARE, CODE OR OTHER INTANGIBLE PRODUCT WRITTEN OR ENCODED ON ANY MEDIUM, OR A LICENCE TO USE ANY SUCH INTANGIBLE PRODUCT;
IMMOVABLE PROPERTY, OTHER THAN AN INTEREST THAT FALLS WITHIN THE DEFINITION OF SERVICE
11
PERSON FOR THE DIRECT OR INDIRECT BENEFIT OF ANOTHER;
ADVICE OR CONSULTATION, EXCEPT ADVICE THAT IS SUBJECT TO REGULATION IN TERMS OF THE FINANCIAL ADVISORY AND INTERMEDIARY SERVICES ACT, 2002 (ACT NO.37 OF 2002);
FINANCIAL SERVICES, OR THE UNDERTAKING, UNDERWRITING OR ASSUMPTION OF ANY RISK BY ONE PERSON ON BEHALF OF ANOTHER, EXCEPT TO THE EXTENT THAT ANY SUCH SERVICE-
THAT IS SUBJECT TO REGULATION IN TERMS OF THE FINANCIAL ADVISORY AND INTERMEDIARY SERVICES ACT, 2002 (ACT NO. 37 OF 2002); OR
REGULATED IN TERMS OF THE LONG-TERM INSURANCE ACT, 1998 (ACT NO. 52 OF 1998), OR THE SHORT
1998);
GOODS;
12
ANY ACCOMMODATION; ANY ENTERTAINMENT OR SIMILAR INTANGIBLE PRODUCT OR ACCESS TO ANY SUCH ENTERTAINMENT OR INTANGIBLE PRODUCT; ACCESS TO ANY ELECTRONIC COMMUNICATION INFRASTRUCTURE; ACCESS, OR OF A RIGHT OF ACCESS, TO AN EVENT OR TO ANY PREMISES, ACTIVITY OR FACILITY; OR ACCESS TO OR USE OF ANY PREMISES OR OTHER PROPERTY IN TERMS OF A RENTAL; A RIGHT OF OCCUPANCY OF, OR POWER OR PRIVILEGE OVER OR IN CONNECTION WITH, ANY LAND OR OTHER IMMOVABLE PROPERTY, OTHER THAN IN TERMS OF A RENTAL; AND ; RIGHTS OF A FRANCHISEE IN TERMS OF A FRANCHISE AGREEMENT, IRRESPECTIVE OF WHETHER THE PERSON PROMOTING, OFFERING OR PROVIDING THE SERVICES PARTICIPATES IN, SUPERVISES OR ENGAGES DIRECTLY OR INDIRECTLY IN THE SERVICE.
13
THE ACT PROVIDES FOR 9 FUNDAMENTAL CONSUMER RIGHTS BEING:
CONDITIONS;
14
A SUPPLIER OF GOODS OR SERVICES MUST NOT UNFAIRLY- EXCLUDE ANY PERSON OR CATEGORY OF PERSONS FROM ACCESSING ANY GOODS OR SERVICES OFFERED BY THE SUPPLIER; GRANT ANY PERSON OR CATEGORY OF PERSONS EXCLUSIVE ACCESS TO ANY GOODS OR SERVICES OFFERED BY THE SUPPLIER; ASSIGN PRIORITY OF SUPPLY OF ANY GOODS OR SERVICES OFFERED BY THE SUPPLIER TO ANY PERSON OR CATEGORY OF PERSONS; SUPPLY A DIFFERENT QUALITY OF GOODS OR SERVICES TO ANY PERSONS OR CATEGORY OF PERSONS; CHARGE DIFFERENT PRICES FOR ANY GOODS OR SERVICES TO ANY PERSONS OR CATEGORY OF PERSONS; TARGET OR EXCLUDE PARTICULAR COMMUNITIES, DISTRICTS, POPULATIONS OR MARKET SEGMENTS; ON THE BASIS OF ONE OR MORE GROUNDS OF UNFAIR DISCRIMINATION AS CONTEMPLATED IN THE CONSTITUTON) (THERE ARE, HOWEVER, REASONABLE GROUNDS FOR DIFFERENTIAL TREATMENT IN SPECIFIC CIRCUMSTANCES FOR EXAMPLE, ON THE BASIS OF MINORS BEING GRANTED ACCESS ONLY WITH CONSENT OF PARENT OR GUARDIAN, EXCLUSIVE USE FOR PENSIONERS ETC)
15
16
(INCLUDES UNWANTED OR UNSOLICTED CORRESPONDENCE, SMS’ TELEPHONE CALLS, LETTER OR EMAILS AND TO DECLINE PARTICIPATION IN MARKETING SURVEYS)- DIRECT MARKETERS SHOULD INCLUDE AN OPT OUT OPTION;
REGISTER TO BE OPERATED OR RECOGNISED BY THE COMMISSION (OUR UNDERSTANDING IS THAT NO REGISTER IS CURRENTLY IN EXISTANCE AND THAT THE COMMISSION IS STILL IN THE PROCESS OF APPROVING BIDS FOR RECOGNITION AS AUTHORITIVE REGISTRIES, HOWEVER, THE DIRECT MARKETING ASSOCIATION OF SOUTH AFRICA SHOULD PROBABLY RECEIVE RECOGNITION FOR THEIR OPT OUT REGISTER IN DUE COURSE, WHICH REGISTER IS CURRENTLY ONLY USED BY THEIR MEMBERS)
17
PRODUCTS OR SERVICES FROM A SUPPLIER OR DESIGNATED THIRD PARTY UNLESS THE SUPPLIER CAN SHOW THE ECONOMIC OR CONVENIENCE BENEFIT;
EXPIRY WITHOUT PENALTY OR CHARGE AND AT ANY OTHER TIME BY GIVING THE SUPPLIER 20 BUSINESS DAYS NOTICE IN WRTING (IN WHICH EVENT THE SUPPLIER MAY IMPOSE A REASONABLE CANCELLATION PENALTY);
OR MAINTENANCE SERVICES;
RESULT OF DIRECT MARKETING WITHIN A COOLING OFF PERIOD OF 5 BUSINESS DAYS WITHOUT ANY CHARGE OR PENALTY;
18
RECEIVED FROM THE CONSUMER WITHIN 15 BUSINESS DAYS SUBSEQUENT TO CANCELLATION IN TERMS OF THE COOLING OFF PROVISIONS;
ORDERS (THE SUPPLIER MAY CHARGE A REASONABLE FEE FOR THE CANCELLATION OF SUCH BOOKING OR RESERVATION-UNLESS AS A RESULT OF DEATH OR HOSPITALISATION);
LOSS OR DAMAGE TO ANY GOODS DISPLAYED BY A SUPPLIER UNLESS THE CONSUMER’S CONDUCT AMOUNTS TO GROSS NEGLIGENCE OR RECKLESSNESS, MALICIOUS BEHAVIOUR OR CRIMINAL CONDUCT;
GOODS SOLELY ON THE BASIS OF A DESCRIPTION OR SAMPLE, PROVIDED BY THE SUPPLIER, THE GOODS MUST CORRESPOND TO THAT WHICH AN ORDINARY ALERT CONSUMER WOULD BE ENTITLED TO EXPECT BASED ON THE DESCRIPTION;
19
AGREEMENT, IT IS AN IMPLIED CONDITION OF EVERY TRANSACTION THAT THE SUPPLIER IS RESPONSIBLE TO DELIVER THE GOODS OR PERFORM THE SERVICES ON THE AGREED DATE AND TIME OR WITHIN A REASONABLE TIME;
TO BE DELIVERED REMAIN AT THE RISK OF THE SUPPLIER UNTIL THE CONSUMER HAS ACCEPTED DELIVERY;
(WITHIN 10 BUSINESS DAYS FROM DELIVERY) TO THE SUPPLIER AND RECEIVE A FULL REFUND (LESS A CHARGE FOR USE IF OPENED AND REPACKAGED) OF ANY CONSIDERATION PAID IF THE SUPPLIER HAS DELIVERED GOODS WHICH THE CONSUMER DID NOT HAVE THE OPPORTUNITY TO EXAMINE BEFORE DELIVERY AND THE GOODS DO NOT MEET THE REQUIRED QUALITY AND TYPE CONTEMPLATED IN TERMS OF THE APPLICABLE AGREEMENT;
SATISFY A PARTICULAR PURPOSE COMMUNICATED TO THE SUPPLIER WITHIN 10 BUSINESS DAYS AFTER DELIVERY TO THE CONSUMER, IF THE GOODS HAVE BEEN FOUND TO BE UNSUITABLE FOR THAT PARTICULAR PURPOSE;
REGULATION OR THE GOODS HAVE BEEN PARTIALLY OR ENTIRELY DISASSEMBLED, ALTERED OR PERMANENTLY INSTALLED, AFFIXED ATTACHED JOINED OR ADDED TO OR COMBINED WITH, OR EMBEDDED WITHIN, OTHER GOODS OR PROPERTY BY OR AT THE DIRECTION OF THE CONSUMER
20
CERTAIN CIRCUMSTANCES AND IF THE SUPPLIER FAILS TO COLLECT WITHIN 20 BUSINESS DAYS) UNSOLICTED GOODS IN ITS POSESSION AT NO COST AND IS UNDER NO OBLIGATION TO PAY A SUPPLIER FOR UNSOLICITED SERVICES.
21
LANGUAGE SO THAT THE AVERAGE PERSON COULD BE EXPECTED TO UNDERSTAND THE CONTENT, SIGNIFICANCE AND IMPORT OF THE DOCUMENT WITHOUT UNDUE EFFORT;
WITHOUT DISPLAYING TO THE CONSUMER A PRICE IN RELATION TO THOSE GOODS;
PRICE FOR ANY GOODS OR SERVICES—
THOSE GOODS OR SERVICES; OR
CONCURRENTLY DISPLAYED, HIGHER THAN THE LOWER OF THE PRICES SO DISPLAYED;
TRADE DESCRIPTION THAT IS LIKELY TO MISLEAD THE CONSUMER AS TO ANY MATTER IMPLIED OR EXPRESSED IN THAT TRADE DESCRIPTION; OR
OBSCURE A TRADE DESCRIPTION OR TRADE MARK APPLIED TO ANY GOODS IN A MANNER CALCULATED TO MISLEAD
RECONDITIONED, REBUILT OR REMADE MUST APPLY A CONSPICUOUS NOTICE TO THOSE GOODS STATING CLEARLY THAT THEY HAVE BEEN RECONDITIONED, REBUILT OR REMADE;
RECORD OF EACH TRANSACTION TO THE CONSUMER TO WHOM ANY GOODS OR SERVICES ARE SUPPLIED, WHICH RECORD MUST INCLUDE THE SUPPLIER’S FULL NAME, REGISTERED BUSINESS NAME, VAT REGISTRATION NUMBER, ADDRESS ETC;
OF A CONSUMER, OR PERFORMING ANY SERVICES MUST VISIBLY WEAR A BADGE OR SIMILAR IDENTIFICATION DEVICE OR PROVIDE SUITABLE IDENTIFICATION ON REQUEST BY THE CONSUMER.
22
23
SERVICE PROVIDER MUST NOT MARKET ANY GOODS OR SERVICES:-
FALSE OR MISLEADING REPRESENTATION CONCERNING THOSE GOODS OR SERVICES; OR
DECEPTIVE IN ANY WAY IN RESPECT OF THE NATURE, PROPERTIES, USES, PRICE, OR ANY OTHER MATERIAL ASPECT OF THE GOODS OR SERVICES;
GOODS OR SERVICES AS BEING AVAILABLE AT A SPECIFIED PRICE IN A MANNER THAT MAY RESULT IN CONSUMERS BEING MISLED OR DECEIVED IN ANY RESPECT RELATING TO THE ACTUAL AVAILABILITY OF THOSE GOODS OR SERVICES FROM THAT SUPPLIER, AT THAT ADVERTISED PRICE;
SERVICES, OR INDUCE A PERSON TO ACCEPT ANY GOODS OR SERVICES ON THE BASIS THAT THE GOODS OR SERVICES ARE TO BE SUPPLIED, OR THE AGREEMENT WILL AUTOMATICALLY COME INTO EXISTENCE, UNLESS THE CONSUMER DECLINES SUCH OFFER OR INDUCEMENT (SUCH AGREEMENT IS VOID).
ACCEPT ANY GOODS OR SERVICES ON THE REPRESENTATION THAT THE CONSUMER WILL RECEIVE A REBATE OR COMMISSION OR OTHER BENEFIT IF THE CONSUMER GIVES THE SUPPLIER THE NAMES OF CONSUMERS;
CAPABLE OF BEING DECLARED VOID, UNLESS THE SUPPLIER WAS INDUCED TO BELIEVE THE CONSUMER HAD LEGAL CAPACITY.
24
A SUPPLIER OR AN AGENT OF THE SUPPLIER MUST NOT USE PHYSICAL FORCE AGAINST A CONSUMER, COERCION, UNDUE INFLUENCE, PRESSURE, DURESS OR HARASSMENT, UNFAIR TACTICS IN CONNECTION WITH SUPPLYING GOODS OR SERVICES;
A SUPPLIER MUST NOT MAKE ANY FALSE, MISLEADING OR DECEPTIVE REPRESENTATIONS CONCERNING A MATERIAL FACT IN RESPECT OF ANY GOODS OR SERVICES.
25
26
SERVICES AT A PRICE, OR ON TERMS, THAT ARE UNFAIR, UNREASONABLE OR UNJUST;
PLACE RISK ON THE CONSUMER MUST BE DRAWN TO THE ATTENTION OF THE CONSUMER;
CONSUMER AGREEMENT THAT ARE REQUIRED TO BE IN WRITING;
CONSUMER IS IN WRITING, IT APPLIES IRRESPECTIVE OF WHETHER OR NOT THE CONSUMER SIGNS THE AGREEMENT AND THE SUPPLIER MUST PROVIDE THE CONSUMER WITH A FREE COPY OR FREE ELECTRONIC ACCESS TO A COPY OF THE TERMS AND CONDITIONS OF THAT AGREEMENT (IF AN AGREEEMENT IS NOT IN WRITING THE SUPPLIER MUST KEEP A RECORD OF TRANSACTION ENTERED INTO OVER THE TELEPHONE);
AGREEMENT SUBJECT TO ANY TERM OR CONDITION IF ITS GENERAL PURPOSE OR EFFECT IS TO, INTER ALIA—
THIS ACT;
THE CONSUMER TO FRAUDULENT CONDUCT;
RIGHT IN TERMS OF THE ACT;
IN TERMS OF THE ACT;
THE ACT.
Unfair, Unreasonable or unjust clauses The Act (Section 48(2)) provides that an agreement, a term or a condition or a notice to which a term may be subject is unfair, unreasonable or unjust if:- It is excessively one-sided in favour of any person other than the consumer or other person to whom goods or services are to be supplied; The terms are so adverse to the consumer as to be inequitable; The consumer relied upon a false, misleading or deceptive representation or statement of opinion provided by the or on behalf of the supplier, to the detriment of the consumer; or The agreement was subject to a term or condition (which would limit the risk or liability of the supplier or any other person, constitute a risk or liability by the consumer or impose an obligation on the consumer to indemnify the supplier or any other person for a cause or be an acknowledgment of any fact by the consumer) and:-
likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances and before the earlier of the time at which the consumer enters into the transaction or is required or expected to offer consideration for the transaction or agreement. The following are clauses which a specifically prohibited in terms of section 51 of the Act A term or condition if its general purpose or effect is to defeat the purposes and policy of the Act or to mislead or deceive the consumer or would subject the consumer to fraudulent conduct; A waiver of the consumer’s rights under the Act; An avoidance of a supplier’s obligations under the Act; A term or condition which purports to set aside or override the effect of any provision of the Act or authorise the supplier to do anything that is unlawful in terms of the act or authorise the supplier to fail to do anything that is required in terms of the Act; A terms or condition if it purports to limit or exempt a supplier for liability for any loss attributable to gross negligence of the supplier or a person acting for
27
28
BEHALF OF A CONSUMER THE CONSUMER HAS A RIGHT TO, INTER ALIA:-
COMPLETION OF SERVICES AND TIMELY NOTICE OF UNAVOIDABLE DELAY IN PERFORMANCE;
THAT PERSONS ARE GENERALLY ENTITLED TO EXPECT;
STANDARDS CONTEMPLATED BEFORE, THE CONSUMER MAY REQUIRE THE SUPPLIER TO EITHER REMEDY THE DEFECT OR REFUND THE CONSUMER A REASONABLE PORTION OF THE PRICE PAID FOR THE SERVICES, HAVING REGARD TO THE EXTENT OF THE FAILURE
EVERY CONSUMER (AUCTIONS EXCLUDED) HAS THE RIGHT TO RECEIVE GOODS WHICH-
WHICH THEY ARE GENERALLY INTENDED;
ORDER AND FREE OF ANY DEFECTS;
PERIOD OF TIME
THE CONSUMER HAS A RIGHT TO EXPECT THAT THE GOODS ARE REASONABLY SUITABLE FOR THE SPECIFIC PURPOSE THAT THE CONSUMER HAS INDICATED TO THE SUPPLIER.
29
THE ABOVE PROVISIONS DO NOT APPLY TO A TRANSACTION IF THE CONSUMER—
WERE OFFERED IN A SPECIFIC CONDITION; AND
CONDITION, OR KNOWINGLY ACTED IN A MANNER CONSISTENT WITH ACCEPTING THE GOODS IN THAT
IMPLIED WARRANTY OF QUALITY
THE CONSUMER MAY RETURN THE GOODS TO THE SUPPLIER, WITHOUT PENALTY AND AT THE SUPPLIER’S RISK AND EXPENSE, IF THE GOODS ARE OF A BAD QUALITY OR ARE NOT SUITABLE FOR THE PURPOSES THEY WERE PURCHASED, AND THE SUPPLIER MUST, AT THE DIRECTION OF THE CONSUMER, EITHER—
GOODS; OR
CONSUMER, FOR THE GOODS.
REOCCURS OR A NEW DEFECT OCCURS, THE SUPPLIER MUST REPLACE THE GOODS OR REFUND THE CONSUMER.
30
THE “STRICT LIABILITY” PRINCIPLE
INTO OUR LAW, WHICH BASICALLY MEANS THAT A CONSUMER CAN HOLD ANY SUPPLIER IN THE SUPPLY CHAIN (ALL SUPPLIERS WHO DIRECTLY OR INDIRECTLY CONTRIBUTE TO THE ULTIMATE SUPPLY OF GOODS OR SERVICES TO A CONSUMER, WHETHER AS PRODUCER, IMPORTER, DISTRIBUTOR OR RETAILER) LIABLE FOR ANY HARM (DEATH, INJURY, ILLNESS, LOSS OR DAMAGE TO PROPERTY AND ANY ECONOMIC LOSS) CAUSED WHOLLY OR PARTLY AS A CONSEQUENCE OF:- SUPPLYING ANY UNSAFE GOODS; A PRODUCT FAILURE, DEFECT OR HAZARD IN ANY GOODS; OR INADEQUATE INSTRUCTIONS OR WARNINGS PROVIDED TO THE CONSUMER PERTAINING TO ANY HAZARD ARISING FROM OR ASSOCIATED WITH THE USE OF ANY GOODS IRRESPECTIVE OF WHETHER THE HARM RESULTED FROM ANY NEGLIGENCE ON THE PART OF THE RELEVANT SUPPLIER.
IT MUST ALSO BE NOTED THAT A SUPPLIER OF SERVICES WHO, IN CONJUNCTION WITH THE PERFORMANCE OF THOSE SERVICES APPLIES, SUPPLIES, INSTALLS OR PROVIDES ACCESS TO ANY GOODS, MUST BE REGARDED AS A SUPPLIER OF THOSE GOODS TO THE CONSUMER, FOR THE PURPOSES OF SECTION 61.
SECTION 61 BECAME EFFECTIVE ON 24 APRIL 2010 AND IT IS OF UTMOST IMPORTANCE THAT ALL SUPPLIERS TAKE THE RELEVANT STEPS TO PROTECT THEMSELVES FROM LIABILITY CAUSED BY ANOTHER SUPPLIER IN THE SUPPLY CHAIN.
31
THIS RIGHT PROVIDES PROTECTION TO CONSUMERS IN TERMS OF LAY
AGREEMENTS REGARDING QUALITY AND DELIVERY AND PROVIDES THAT SUPPLIERS IN POSSESSION OF ANY PREPAID CERTIFICATES, CREDITS, VOUCHERS, MEMBERSHIP FEES OR OTHER MONEY BELONGING TO THE CONSUMERS, MUST NOT TREAT SUCH PROPERTY AS THEIRS; EXERCISE CARE, DILIGENCE AND SKILL; AND ASSUME LIABILITY FOR ANY LOSSES SUFFERED BY CONSUMERS IN THIS REGARD, AND PROVIDES THAT A PREPAID CERTIFICATE, CARD, CREDIT, VOUCHER OR SIMILAR DEVICE DOES NOT EXPIRE UNTIL ITS FULL VALUE HAS BEEN REDEEMED OR THREE YEARS AFTER THE DATE ON WHICH IT WAS ISSUED.
32
FIXED TERM AGREEMENTS EXCLUDING EXEMPTED TRANSACTIONS AS WELL AS TRANSACTIONS BETWEEN JURISTIC PERSONS-REGARDLESS OF THEIR ANNUAL TURNOVER OR ASSET VALUE) MAY BE FOR A MAXIMUM PERIOD OF 24 (TWENTY FOUR) MONTHS FROM DATE OF SIGNATURE OF THE AGREEMENT BY THE CONSUMER UNLESS A LONGER PERIOD IS EXPRESSLY AGREED WITH THE CONSUMER AND THERE IS A DEMONSTRABLE FINANCIAL BENEFIT TO THE CONSUMER OR UNLESS DIFFERENTLY PROVIDED FOR BY REGULATION IN RESPECT OF A SPECIFIC TYPE OF AGREEMENT, CONSUMER, SECTOR OR INDUSTRY;
A CONSUMER MAY CANCEL A FIXED TERMS AGREEMENT UPON EXPIRY OF THE FIXED TERM OR AT ANY OTHER TIME, BY GIVING THE SUPPLIER 20 (TWENTY) BUSINESS DAYS’ NOTICE IN WRITING OR OTHER RECORDED MANNER AND FORM (IN WHICH EVENT REASONABLE PENALTIES MAY BE IMPOSED BY THE SUPPLIER)
THE SUPPLIER MAY CANCEL THE AGREEMENT ON 20 (TWENTY) BUSINESS DAYS’ AFTER GIVING WRITTEN NOTICE TO THE CONSUMER OF A MATERIAL FAILURE BY THE CONSUMER TO COMPLY WITH THE AGREEMENT, UNLESS THE CONSUMER HAS RECTIFIED THE FAILURE WITHIN THE STATED TIME;
THE SUPPLIER MUST , NOT MORE THAN 80 AND NOT LESS THAN 40 BUSINESS DAYS BEFORE THE EXPIRY DATE OF THE FIXED TERM OF THE AGREEMENT, NOTIFY THE CONSUMER IN WRITING OR OTHER RECORDABLE FORM, OF THE IMPENDING EXPIRY DATE, WHICH MUST INCLUDE A NOTICE OF ANY MATERIAL CHANGES THAT WOULD APPLY IF THE AGREEMENT IS TO BE RENEWED OR MAY OTHERWISE CONTINUE BEYOND THE EXPIRY DATE AND MUST SET OUT THAT THE AGREEMENT WILL AUTOMATICALLY CONTINUE ON A MONTH-TO-MONTH BASIS, SUBJECT TO ANY MATERIAL CHANGES OF WHICH THE SUPPLIER HAS GIVEN NOTICE AS AFORESAID, UNLESS THE CONSUMER EXPRESSLY DIRECTS THE SUPPLIER TO TERMINATE THE AGREEMENT ON THE EXPIRY DATE OR AGREES TO A RENEWAL FOR A FURTHER FIXED TERM;
THE CLAUSES RELATING TO EXPIRY AND RENEWAL OF A FIXED TERM AGREEMENT MAY (CROSS REFERENCE BETWEEN ACT AND REGULATIONS ARE WRONG) APPLY RETROSPECTIVELY TO PRE-EXISTING AGREEMENTS FROM 1 APRIL 2011. 33
THE FACT WHETHER OR NOT A PARTICULAR LEASE AGREEMENT FALLS WITHIN OR OUTSIDE THE SCOPE OF THE ACT WILL HAVE TO BE DETERMINED ON A CASE TO CASE BASIS AND WILL DEPEND ON HOW WIDELY THE ASPECT OF “IN THE ORDINARY COURSE OF BUSINESS” WILL BE INTERPRETED;
SHOULD A LEASE AGREEMENT FALL WITHIN THE AMBIT OF THE ACT, THE FOLLOWING ARE, INTER ALIA, CONSIDERATIONS TO WHICH THE LANDLORD WILL HAVE TO PAY ATTENTION:-
AGREEMENT MUST BE IN PLAIN AND UNDERSTANDABLE LANGUAGE (UNDERSTANDABLE TO THE TENANT);
IN THE AGREEMENT WHICH WOULD LIMIT THE RISK OR LIABILITY OF THE LANDLORD OR ANY OTHER PERSON, CONSTITUTE A RISK OR LIABILITY BY THE TENANT OR IMPOSE AN OBLIGATION ON THE TENANT TO INDEMNIFY THE LANDLORD OR ANY OTHER PERSON FOR ANY CAUSE OR BE AN ACKNOWLEDGMENT OF ANY FACT BY THE CONSUMER);
LESSOR;
WILL BE REGARDED AS BEING INCORPORATED INTO THE LEASE (EXCEPT IN CIRCUMSTANCES WHERE THE TENANT HAS BEEN INFORMED THAT THE PROPERTY IN QUESTION IS OFFERED IN A SPECIFIC CONDITION) AND THE TENANT WILL HAVE THE RIGHT TO RECEIVE THE PROPERTY IN A CONDITION REASONABLY SUITABLE FOR THE PURPOSE FOR WHICH IT HAS BEEN OBTAINED;
PROVISIONS REGARDING FIXED TERM AGREEMENTS DISCUSSED BEFORE (THIS WILL NOT APPLY WHERE THE TENANT IS A JURISTIC PERSON) AND THE TENANT WILL HAVE THE RIGHT TO CANCEL THE LEASE AGREEMENT ON 20 (TWENTY) BUSINESS DAYS’ NOTICE.
34
SECTION 79 PROVIDES THAT A PERSON MUST NOT CARRY ON BUSINESS, ADVERTISE, PROMOTE, OFFER TO SUPPLY OR SUPPLY GOODS OR SERVICES OR ENTER INTO AN AGREEMENT USING A NAME UNLESS DOING SO;
IN THEIR FULL NAME AS RECORDED IN THEIR ID BOOK OR ANOTHER RECOGNIZED FORM OF IDENTIFICATION IF THE PERSON IS AN INDIVIDUAL OR IN THE CASE OF A JURISTIC PERSON A REGISTERED BUSINESS NAME INTENDED FOR USE BY THAT PERSON ACCORDING TO THE REGULATIONS OF SECTION 80 OF THE ACT OR ANY RELATED PUBLIC REGULATION.
SECTION 80 OF THE ACT SETS OUT THE REGISTRATION PROCEDURE AND SECTION 81 THE CRITERIA FOR BUSINESS
REGISTERED.
THESE REGULATIONS ARE NOT YET IN EFFECT AND WILL ONLY COME INTO EFFECT ON A DATE NOT EARLIER THAN 1 YEAR FROM 1 APRIL 2011.
35
WHO ARE ENTITLED TO APPROACH THE COMISSION, COURT OR TRIBUNAL TO ENFORCE A CONSUMER RIGHT?
ANOTHER PERSON WHO CANNOT ACT IN HIS OR HER OWN NAME;
OF, A GROUP OR CLASS OF AFFECTED PERSONS;
OF THE TRIBUNAL OR COURT;
MEMBERS.
36
A PERSON MAY SEEK TO ENFORCE ANY RIGHT IN TERMS OF THIS ACT BY—
JURISDICTION,
RESOLUTION AGENT OR
MATTER, IF ALL OTHER REMEDIES AVAILABLE HAVE BEEN EXHAUSTED
PERMITTED (BY LEAVE OF THE TRIBUNAL)
37
UPON INITIATING OR RECEIVING A COMPLAINT IN TERMS OF THE ACT, THE COMMISSION MAY:-
VEXATIOUS, DOES NOT ALLEGE FACTS WHICH CONSTITUTE GROUNDS FOR A REMEDY UNDER THE ACT OR MORE THAN 3 YEARS EXPIRED AFTER CAUSE OF COMPLAINT AROSE OR PRACTICE WHICH CAUSED COMPLAINT CEASED OR A COMPLAINT AGAINST A PERSON WHO IS OR HAS BEEN A RESPONDENT IN PROCEEDING RELATING TO SUBSTANTIALLY THE SAME CONDUCT) (IF THE COMMSSION ISSUES A NON-REFERRAL OTHER THAN FOR THE LAST TWO GROUNDS MENTIONED, THE COMPLAINANT MAY REFER THE MATTER DIRECTLY TO THE CONSUMER COURT OR THE TRIBUNAL (WITH LEAVE OF THE TRIBUNAL).
RESOLUTION AGENT (UNLESS THE PARTIES HAVE PREVIOUSLY UNSUCCESSFULLY ATTEMPTED TO RESOLVE THE DISPUTE IN THAT MANNER);
AUTHORITY WITH JURISDICTION OVER THE MATTER FOR INVESTIGATION; OR
PRACTICABLE.
38
AFTER CONCLUDING AN INVESTIGATION INTO A COMPLAINT, THE COMMISSION MAY:-
IN THE PRESCRIBED FROM
AUTHORITY IF THE COMMISSION ALLEGES THAT A PERSON HAS COMMITTED AN OFFENCE IN TERM OF THE ACT;
COMPLY THE COMMISSION CAN APPLY TO THE TRIBUNAL FOR THE IMPOSITION OF AN ADMINISTRATIVE FINE OR REFER THE MATTER TO THE NATIONAL PROSECUTING AUTHORITY )
39
IMPORTANT CONTACT DETAILS
(012 394 1436 / 1558/1076);
(012 663 5615)
40