Consumer Protection Act, 68 of 2008 (hereinafter referred to as “the Act” or “CPA”)

What is the CPA?

The Consumer Protection Act came into operation in 2011, it was assented to by the President of South Africa on 24 April 2009, whereupon the Act was published on 29 April 2009, and the regulations in respect thereof were published on 1 April 2011.[1]

The CPA was developed and promulgated in order to provide a legislative and regulatory framework that protects the rights of consumers. It is a unique statute and therefore it does not replace a predecessor[2]. The CPA aims to balance the powers of consumers and suppliers in transactions.

Who is a consumer?

A consumer in respect of section 1 of the Act is a natural person or a juristic person (non-human legal entity) with an asset value or annual turnover of less than R2 million. A consumer is someone to whom particular goods or services are marketed, or someone  who enters into a  transaction with a supplier, or a user of particular goods or recipient of services irrespective of whether or not he/she was a party to that transaction, or a franchisee in terms of a franchise agreement,  in the ordinary course of the supplier’s business.

The CPA and the consumer

The Act ensures that the consumer’s common law rights are protected and affords the consumer with further statutory rights created within the CPA, such as:

  • Privacy – right to refuse unwanted marketing[1].
  • Equality – in the consumer market, the supplier is also subject to section 9 of the Constitution[2].
  • Choice – including but not limited to selection of suppliers, cancelation or renewal of fixed term agreements, pre-authorization of repair and maintenance services, right to pre-cancellation of advanced bookings, reservations or orders and the choice to choose and examination goods.[3]
  • Disclosure and Information – this includes a right to receive information in plain and comprehensible language, disclosure of the cost of goods and services and the disclosure of information on sales records.[6]
  • Fair Just and reasonable terms and conditions.[7]
  • Fair and reasonable marketing – protecting the consumer against misleading marketing and to promote responsible marketing practices.[8]
  • Fair and honest dealing – dealing with the consumer fairly and in an open and honest way, without influence or duress.[9]
  • Fair value, good quality and safety – which includes the right to an implied warranty.[10]

The CPA and Businesses

Businesses should be well versed with the regulations contained in the CPA, read together with the Constitution, in order for them to operate in a legal and ethical manner.  It is always advisable for businesses to create business practices which promote transparent and honest trading. Non-compliance could cause serious damage to a business in terms of reputation, as well as financially.

However, the suppliers are not without protection, as the CPA retains all the common-law rights offering protection to the supplier. The CPA further protects the suppliers by preventing competitors from undermining their businesses by unfair and deceptive marketing practices.

When is the CPA applicable?

The CPA applies to any transaction or promotion of goods and services in the ordinary course of the suppliers’ business within the Republic of South Africa. The CPA further applies to goods and services provided by clubs, trade unions, associations or other collectives, as well as stokvel, franchise agreements and municipalities.[11]

When is the CPA NOT applicable?

The CPA does not apply to transactions where the State is a consumer, to a juristic consumer with an asset value or annual turnover of more than R2 million, to Credit agreements  (but not for goods or services – they must comply with CPA), labour agreements, transactions outside of the Republic of South Africa, industry wide exemption being granted to regulatory authorities or any other transactions which are exempted by the CPA itself.[12]

Non-compliance with the CPA

Firstly, the consumer should lodge a written complaint with the supplier. Should there be no resolve there are various regulatory institutions the consumer could contact, depending on the nature of the complaint.

It is one of the CPA’s objectives to provide for an accessible, effective, consistent system of restitution for consumers.

As such, the National Consumer Commission was created by the CPA[13]. The National Consumer Commission is tasked with queries relating to consumer protection, including but not limited to the development of codes of practice, identifying legislation which is
inconsistent with the CPA and reporting on market practices.

The National Consumer Tribunal, as established by the National Credit Act 34 of 2005,[14] further ensures the protection of the rights of consumers.

Aggrieved consumers may also approach the Small Claims Court, Magistrate’s Court, Regional Court or the High Court with the relevant jurisdiction to hear the dispute, in order to have their consumer rights enforced.[15]

“The Courts are moreover enjoined to develop the common law as necessary and to improve the realization and enjoyment of the consumer rights generally (and particularly by vulnerable persons) in any manner brought before the NCT or a court in terms of the Act.”[16]

Who to contact for assistance?

  • Your local Legal Practitioner;

[1] Sarah-lynn Tennant Consumer Law Compliance (2016)

[2] Sarah-lynn Tennant Consumer Law Compliance (2016)

[3] Section 11, 12, 16, 20(4)-(6), 28 & 32

[4] Section 8, read with section 9, 29-41, 48

[5] Section 13-15 & 17-21

[6] Section 22 read with 50, 23,24(1)-(4), 25 & reg 8, 26, 27 & reg 9-10

[7] Section 48 &reg 44, 49 read with 52(4), 58, 51 read with 52, 52 read with 76, 114,115

[8] Section 29-39 & reg 11

[9] Section 40-43 & reg 15 & 17

[10] Section 54-57 read with 19(2), 44 and 56, 60-61 read with 5(5)

[11] Section 5

[12] Section 5

[13] Section 70

[14] Section 26

[15] Section 52 read with section 76, 114 & 115

[16] Evert van Eeden & Jacolien Barnard Consumer Protection law in South Africa (2nd ed)