Consumer Protection Act: Your Ultimate FREE Guide

Basics

The Consumer Protection Act, No. 68 of 2008 was signed on 24 April 2009. It aims to:

• Promote a fair, accessible and sustainable marketplace for consumer products and services;
• Establish national norms and standards to ensure consumer protection;
• Make provision for improved standards of consumer information, to prohibit certain unfair marketing and business practices;
• Promote responsible consumer behaviour;
• Promote a consistent legislative and enforcement framework, related to consumer transactions and agreements;
• Establish the National Consumer Commission; and
• Replace, in a new and simplified manner, existing provisions from previous acts

The Consumer Protection Act further outlines these key consumer rights, of which all South African consumers should be aware.

These include the following:

1. Right to Equality in the Consumer Market and Protection Against Discriminatory Marketing Practices;

2. Right to Privacy;

3. Right to Choose;

4. Right to Disclosure of Information;

5. Right to Fair and Responsible Marketing;

6. Right to Fair and Honest Dealing;

7. Right to Fair, Just and Reasonable Terms and Conditions;

8. Right to Fair Value, Good Quality and Safety; and

9. Right to Accountability by Suppliers.

We will cover several different sections in which the act applies to consumers’ day to day lives, and how we can exercise our rights in these situations.

1. Cell Phone Contracts
2. Personal Debt
3. Online Shopping
4. Banking
5. Refunds of Physical Goods
6. Insurance
7. Lease of Property
8. Used Car & Voetstoets Sales
9. Email & Marketing Spam
10. Dining Out
11. Reporting Companies
12. What the Act Does Not Cover
13. More Information

Cell Phone Contracts

Contract cancellation and expiry

The Act requires suppliers to send consumers a notification that their contract is about to expire 40 to 80 business days before the expiry date. Consumers are also entitled to cancel fixed-term agreements before the expiry date under the CPA.

However, consumers have to give 20 business days notice and the cancellation is still subject to several conditions or considerations:

1. Consumers must still pay the supplier (e.g. cellular provider) any amounts owed up to the date of cancellation.
2. Suppliers are entitled to impose a reasonable cancellation penalty. This penalty is to cover any goods, services, or discounts provided under the assumption that the agreement would last the entire fixed-term. What “reasonable” means in the context of cellular contracts is not very well defined unfortunately.
3. Suppliers must credit the consumer any amounts they may owe as of the date of cancellation.

The consumer protection regulations say that “a reasonable credit or charge” may not exceed 10% of the amount a consumer would have had to pay over the remainder of the fixed-term. This excludes any interest that may be applicable. Overall, this is very good news for consumers locked into two year contracts that they may no longer want or need, or can no longer afford.

Personal Debt

Although not directly tied to the consumer protection act, it is also useful to point out which acts apply to people that wish to apply for credit. You are entitled to receive a copy of your credit report from each of the credit reporting agencies for free each year to check for mistakes.

The following laws are essential to understand your rights as a consumer when it comes to lines of credit:

• Fair Debt Collection Practices Act. This act states all the conditions that third-party collection agencies can use to collect debt. These laws only apply to private individuals, and not business or commercial debts. It is very important to familiarise yourself with this Act if you are having problems with a bill collector.
• The Fair Credit Reporting Act.  The Act states what types of debt can be reported on your credit report, the length of time the report can be listed on the report, and what consumers can do to correct reporting errors. This Act places a lot of control in the hands of the consumers to take care of their credit reports.
• Truth In Lending. The Truth in Lending laws are part of the Consumers Credit Protection Act. This act states that all entities that give credit through loans or credit cards need to disclose all the facts up-front regarding all costs involved. This includes interest rates, fees, and terms and conditions. Monthly instalment lines of credit must disclose what day the payment is due, and how much of the monthly payment will be used to pay interest.
• Equal Credit Opportunity Act. This law bans companies that give credit from denying it based on demographics such as race, religion, sex, marital status, or age.
• Fair Credit and Charge Card Disclosure Act. This act requires any credit issuing company to disclose finance charges, and any changes to those charges in the future, on all of their solicitations for credit.
• The Fair and Accurate Credit Transaction Act. This Act provides consumers with one free credit report each year from each of the three credit reporting agencies

Online Shopping

Thanks to the CPA, South Africans have a great deal of protection when buying goods online. In fact, South African consumers are some of the most protected in the world.

Although the CPA protects consumers generally, online shoppers were already quite well protected under South African law. The Electronic Communications and Transactions (ECT) Act was enacted in 2002 and contains consumer protection provisions for electronic transactions – like shopping online. Whenever there is an overlap between the provisions of both the Acts, our legal system is required to err in favour of the Act that offers the consumer the most protection.

Know your rights

To break it down, the ECT Act offers the following protection:

1. The vendor must provide the consumer with certain specified information of the vendor (section 43);
2. The vendor must provide the consumer with an opportunity to review, correct or withdraw from a transaction (section 43);
3. The vendor must implement a specified secure payment system  (section 43);
4. The consumer has a cooling off period of seven days (section 44);
5. The consumer has certain options in the event of a vendor offering unsolicited goods, services or communications (section 45); and
6. A vendor must perform within 30 days from which the order was received, or a time period alternatively agreed with the consumer (section 46).

In addition, the CPA requires that:

1. A vendor may not require a consumer to buy other goods or services as a condition of offering to supply certain goods or services (section 13);
2. Goods must correspond to the sample and description given to a consumer (section 18(4));
3. A vendor must disclose information on goods or services in plain English (section 22) and not in a way to mislead the consumer or prospective consumer (section 24(2));
4. Any provision in an agreement with a consumer that: limits the vendor`s liability or risk; assumes risk or liability on the consumer; or requests the consumer to indemnify the vendor, must be drawn to the consumer`s attention (section 49);
5. A vendor must deliver goods or services of good quality, free of defects and reasonably suitable for the purpose for which they were required. Where a consumer specifically informs a vendor of a particular purpose he wishes to acquire goods or services for, the consumer can expect the goods or services to be suitable for that purpose (section 55); and
6. A vendor must offer goods or services in its business name (section 79).

Between the two Acts, online shoppers are extremely well protected. The ECT Act`s cooling-off period is a great example of a right that not many shoppers know they have, but one that definitely proves useful if something was bought online on impulse. The cooling period of 7 days allows the shopper to cancel any transaction they have made online – and all online stores are required to tell shoppers about this right on their sites.

The online shopper would still be liable for the cost of posting if the product was shipped within that seven-day period.

Banking

The Minister of Trade and Industry has exempted banks from the provisions in the Consumer Protection Act that (with a few exceptions) limit fixed-term contracts to a 24 month period, give consumers the option of cancelling them subject to 20 business days’ notice (on payment of a “reasonable” penalty), and regulate notice of expiry and automatic continuation of such contracts.

So if, for example, you put money into a fixed deposit with a bank, you are still bound to its full term – you can’t give early notice to take advantage of an upward movement in interest rates.

Banks have the Interbank system that shares your personal information and financial history between them. What they share internally is not available to the public, even through the various credit bureaux. When it comes to it, consumers still don’t have a massive amount of leverage when it comes to resolving problems with banks. When a serious issue arises, it may be helpful to contact the banking ombudsman to help resolve it.

Refunds of Physical Goods

As indicated in section 55 of the CPA, every consumer has the right to goods that are of good quality, in working order, free of defects and reasonably suitable for the purpose generally intended. Goods with defects can only be sold to the consumer if they are aware of and clearly accept the defects present.

There is a three month warranty that applies to any goods under repair, which trumps the initial six month warranty, so that if a defect unrelated to the repair arises within the following three month period, the goods must be replaced or refunded, without the option of repair. If the repair holds for three months, and any other defects become apparent only after the expiry of three months but while the initial six month period is still running, then the right to demand a refund re-materialises, along with the suppliers right to effect a repair if the consumer does not demand a refund.

• According to Chapter 2, Section 56, a consumer can return goods to a supplier within 6 months of their delivery, if the goods fail to satisfy the agreed standards and requirements (which state that the goods must be in good working order, free of defects etc – see Section 55 for details). This return must take place without penalty and at the supplier’s risk and expense.
• The supplier must either repair or replace the failed, unsafe or defective goods, or refund the consumer.
• If there is a problem with the repaired good within the next 3 months, the supplier must replace it or refund the consumer.
• Chapter 2, Section 20 states that a consumer can return goods to a supplier and receive a full refund within 10 business days if the supplier has delivered:
  • goods as a result of direct marketing and the consumer has cancelled the agreement during the cooling off period. In this instance, the goods must be returned at the risk and expense of the consumer.
  • goods that the consumer did not have an opportunity to examine before delivery, and has rejected on delivery. These goods must be returned at the risk and expense of the supplier.
• However, it is important to note that this does not apply where:
  • The goods concerned have been disassembled, altered, permanently installed or combined with other goods; or
  • There is a public regulation prohibiting the return of the goods.
• If the goods concerned have been used or need to be repackaged, the supplier may charge the consumer a “reasonable amount” for this inconvenience.

Insurance

Amongst other things, the Act provides protection against:

• Inferior products or services, regardless if any harm was caused by such goods or services.
• Any unfair business practises during the sale or marketing of goods and services.

Most of the protection offered by the Act is not similar to the focus of insurance cover. The Act protects against bad service, the return / exchange of goods, undesirable marketing practises, consumers right to cooling off periods, etc.

Suppliers often try limit their liability through disclaimers in their contracts and terms. However, the terms in the consumer protection act will always over-rule should any conflicts arise. It is important to note is that the supplier is not permitted to do so in the case of gross negligence.

The supplier also may not require consumers to waive any rights, assume any obligation, nor waive any liability of the supplier on terms that are unfair, unreasonable or unjust to the consumer.

It is important that consumers and suppliers are both aware of their rights and obligations towards each other.

• Be aware that all insurers do not have the exact same terms and conditions.
• Insurers may have different responses to the same claim, so be aware that you may not receive the same response that a friend or neighbour did in the same situation
• Even though the Consumer Protection Act provides some protection – this does not take away your obligation towards alertness. It is essential to understand your rights, but you are also responsible for your insured goods as stipulated in your insurance contract.
• If you are unsure of a specific scenario – make sure to contact your insurer directly, and request a response in writing so that you can keep it for future reference.

Lease of Property

Duration of Lease: The maximum duration of a Lease Agreement is 24 months.

Right of Cancellation: The Lessee (consumer) may terminate the Lease at any time after giving 20 (business) days notice, effectively one month – however a reasonable penalty fee may be charged for this. The Lessor must give 20 (business) days notice to cancel for a ‘material failure to comply with the agreement’ and must give 40-80 days notice that the agreement is coming to end.

If the tenant, however, does not cancel the agreement or renew it for another fixed
term, it will automatically continue on a month to month basis subject to the
amendments thereto as proposed by the landlord in writing.

Similarly, the landlord may give the tenant written notice to correct any breach of the
agreement and thereafter if he/she fails to rectify it, cancel the agreement 20
business days after such notice was given to the tenant.

In terms of section 22 of the CPA, all documents relating to the lease must be written in plain language so that a consumer of the “ordinary class of persons” is able to understand it. This provision extends to anyone including – suppliers, consumers, landlords and tenants. This means that using a standard lease agreement for all
tenants may not be such a prudent idea and that it may be more advisable to tailor
agreements to the tenant’s ability to comprehend.

By virtue of voetstoets clauses in lease agreements, the leased property is let as is and the landlord does not bear any obligation to fix any defects. These terms are often quite unreasonable, many tenants don’t know their rights and accept these without question. The incorporation of these pseudo voetstoots clauses does not limit the landlord’s obligation to maintain the leased premises in good order. All defects of the house need to be made clear to the consumer prior to the tenant moving in, or else the lease may be invalidated.

Used Car & Voetstoets Sales

Section 55(2)(b) of the CPA provides that the consumer has a right to receive goods that are of good quality, in good working order and free from any defects. This section is not applicable to a transaction if the consumer expressly agreed to accept the goods in that condition and knowingly acted in a manner consistent with accepting the goods in that condition. In short, the voetstoots rule will in most cases not be applicable to sale and purchase transactions.

The cooling period listed in the CPA is also important. This says if you buy the car on impulse you can return it, no strings attached. This cooling off period does have clear cut parameters: it lasts for five business days and can only be invoked if the buyer has bought a car as a result of direct marketing concerning that same product from a supplier. For example, you need to have received an email, SMS or other direct marketing material from the supplier to buy into that specific deal before you are eligible for the cooling off period.

Consumers can also return goods to the supplier for a full refund in circumstances when the goods are not of the quality perceived by the customer in the agreement. But consumers may still be liable for charges of using the vehicle during this period, such as adding to the mileage of the car or affecting its condition. Sellers may impose a reasonable charge for the consumption or depletion of goods or any costs required for the restoration of the goods if they have been used.

The common law principle of buying a car voetstoets, or what you see is what you get, is now a thing of the past – with the new law, consumers will need to be made fully aware of what they are getting themselves into. False, misleading or deceptive representations are also not allowed, and suppliers need to be wary of making false representations or failing to disclose a material fact regarding the condition of pre-owned vehicles to a consumer. Consumers have the right to cancel the sale should they feel they have been deceived.

Consumers now have the right to cancel a sale if obligations with respect to delivery of goods and supply of services are not met. The Act makes it an implied condition that every transaction will take place according to what was agreed between the consumer and supplier, for example the delivery of a vehicle at an agreed time, date and place.  If a consumer has agreed with a dealer that certain items on a pre-owned vehicle will be repaired and functional upon delivery, then the dealer is under obligation to comply or his sale may very well be cancelled.

Email & Marketing Spam

The CPA requires that:

• recipients are able to refuse to accept, request discontinuation or pre-emptively block direct marketing communications;
• the sender/direct marketer must confirm unsubscribe requests in writing;
• the opt-out request must be respected, as must any pre-emptive block registered; and
• no fee may be charged for any opt-out or for the registration of a pre-emptive block by a consumer.

The CPA includes the provision of a Do Not Contact Registry (DNCR) which will serve to register any pre-emptive block of direct marketing material. It is a nationally operating registry that ensures blocks are registered within 30 days.

Direct marketers are required to register with the DNCR, providing certain details. A direct marketer that wants to send marketing material is required to first check the consumer’s details via the DNCR. It is not allowed to send the communication without first querying the DNCR and receiving confirmation that no block has been registered. (Note: This does not apply to existing clients, where the direct marketer has proof that the consumer has expressly consented to receiving direct marketing from the direct marketer, which consent was provided after 1 April 2011).

Thanks to the CPA, consumers will be able to add their contact details to the registry and so block direct marketing communications from all companies, even those that they might have previously given permission to contact them. But consumers need to realise that the registry is somewhat of a blunt instrument – once you have added your details, you would have to sign up again with companies that you do want to hear from.

From an SMS point of view, the registry will go a long way to cutting down on SMS spam, but only for those on the registry. Recently spammers have been bypassing industry regulations such as the WASPA Code, which you may have noticed as an increase in SMS marketing messages. The CPA now applies to all companies, including network operators and marketers using this medium.

Suppliers may not engage in direct marketing directed at consumers at home during the following hours/days:

• on Sundays or public holidays;
• on Saturdays, before 09h00 and after 13h00; and
• every other day, between the hours of 20h00 and 08h00 the following day.

Dining Out

There are two rights covered in the Act which apply to eating out – the right to fair and honest dealing and the right to good quality and safety.

Many people have had some awful experiences of food poisoning after eating out. Section 61 of the Act states that the supplier is liable for any damage, sickness, injury or death caused by the food provided. You don’t need to prove negligence – all you would need to do is submit your claim to the management of the restaurant, setting out your medical expenses and proof of your illness. The claim can be in relation to direct costs but may also include economic loss caused as a result of the harm caused (which may include loss of earnings, loss of profit or potential profit for any business whose activities might be suspended or affected by the harm, and in the event of death, for financial support for dependants left behind). The management of the restaurant should then compensate you for your losses. If there are any issues with the staff you are dealing with, you may report the company to the office of consumer protection (contact details in the next section).

You also have a right to good quality – in terms of both the food and the service you receive. If you feel that the food you ordered is “…not reasonably suitable for the purposes for which it was intended, or is not of good quality…”, then you can demand either a refund or that the restaurant replaces the meal.

If the service you receive is of not good quality for any reason, (you may have a rude waitron serving you, or he/she makes mistakes with your order or bills you incorrectly), then you also have direct recourse to management to demand a discount based on the degree that the service fell short. This should not be exploited in any way, but a fair decision can hopefully be reached by management that suits all parties.

Overbooking is dealt with in Section 47. A restaurant must honour its commitment to you for your booking. Should a restaurant tell you on your arrival that there is no table available for you (even though you booked), you may request that they compensate you for the costs directly involved in the breach – such as transportation, booking and parking costs.

The right to fair and honest dealing protects you in that should the food you receive not match the description in the menu or an advert for that dish, then you can ask management for a full refund or to replace the meal.

Reporting Companies

Phone the consumer Help Line, via

• the dti Customer Contact Centre: 0861 843 384
• the dti Office of Consumer Protection (OCP) : (012) 394 1436 / 1558 /1076
• E-mail: contactus@thedti.gov.za This e-mail address is being protected from spambots. You need JavaScript enabled to view it
• the dti Website: www.thedti.gov.za
• National Consumer Tribunal (NCT): (012) 663 5615
• NCT E-mail: Registry@thenct.org.za This e-mail address is being protected from spambots. You need JavaScript enabled to view it
• NCT Website: www.thenct.org.za

What the Act Does Not Cover

Any contracts you signed, transactions you entered into or products you might have bought prior to April 1, 2011 will not be subject to the Act. If you entered into a contract before April 1 which you would like to cancel, the original terms and conditions still apply and you will have to pay the penalty stipulated in your agreement. This also applies to goods bought before April 1, where the commission will not entertain complaints stemming from these purchased goods.

There is a zero tolerance policy for entertaining frivolous or malicious complaints. If consumers take unfair advantage of these processes, those who really need protection will suffer, and everybody’s time will be wasted in the process.

It is also worth noting that not all complaints can be dealt with by the Consumer Commission. Issues such as the exact interpretation of contracts and claims are necessary to be addressed by the courts. This is especially relevant in cases where harm was caused due to defective or unsafe products. In these instances, the commission can help point you in the right direction (such as small claims or labour courts).

Consumers are also warned that the Act is not there to make a quick buck. There will be very few instances where consumers will be compensated financially. The Act is there to ensure that you, as a buyer, receive what you paid for and are entitled to. It’s also meant to protect you being misled into paying for products and services that don’t exist, are poorly delivered, or are defective.

More Information

Although this blog post is a basic guide for many transactions and activities that South Africans undertake, if you want to know more I would highly suggest getting hold of the official books on the subject – made by the same lawyer that helped draft the act itself! Both are available as low cost e-books below:

For Businesses:	For Individuals:
	(Only R40)

Related posts:

1. The Short but Powerful Guide to Personal Branding

Tagged as: banking, cell phone contracts, consumer protection act, dining out, email, guide, insurance, lease, marketing, online shopping, personal debt, refunds of physical goods, voetstoets