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The Consumer Protection Act, 2008 Rights, Obligations and Remedies.

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Presentation on theme: "The Consumer Protection Act, 2008 Rights, Obligations and Remedies."— Presentation transcript:

1 The Consumer Protection Act, 2008 Rights, Obligations and Remedies

2 Interpretation Sec 1 – Definitions NB eg. Consumer Sec 2 - Interpretation Must give effect to purposes in sec 3 Purposes are to promote and advance social and economic welfare of consumers in South Africa by – 3(a) – 3(h) Court, Tribunal or Commission may consider: -foreign and international law, conventions, declarations, or protocols relating to consumer protection -decisions of consumer court, ombud, or arbitrator in terms of Act. Sec 2(3) Signing and initialling of documents – may be effected in any manner recognised by law including electronic signature Supplier must take reasonable measures to prevent use of of consumer’s electronic signature ( s 2(4) ) Inconsistency between Act and any other Act (s 2(9) ) Provision that extends the greater protection to a consumer prevails except hazardous chemical products where only Act applies relating to consumer redress. Any rights of consumer in terms common law not excluded

3 Locus Standi & Realisation of Rights Who may approach court, Tribunal or Commission? Sec 4 (1) (a) – (e) i.e. also : person as member or interest group or class of affected persons acting in the public interest but only with leave of court or Tribunal association acting in the interest of members Tribunal : National Consumer Tribunal established by sec 26 of National Credit Act Court by def: does not include Consumer Court REALISATION OF RIGHTS In any matter brought before court or Tribunal ( s 4 (2) ): Court must develop the common law to improve realization and enjoyment of consumer rights generally and particular persons referred to on s 3(1) (b) i.e special category of consumers; and Tribunal or court must promote spirit and purposes of Act; and Make appropriate orders to give practical effect to the consumer’s right of access to redress including but not limited to innovative orders that better advances, protects, promotes, and assures the realization by consumers of rights In construing Act Court or Tribunal must prefer meaning that best promotes the spirit and purposes of Act, improve realization and enjoyment of consumer rights, in particular special category of consumers ( s 4 (3) )

4 NB : Section 4 (4) Interpretation by Court or Tribunal of standard form, contract, or document prepared by supplier must be to benefit of consumer iro:- - ambiguity capable of more than one reasonable interpretation resolved to benefit of consumer - so that any restriction, limitation, exclusion or deprivation of consumer’s legal rights is limited In dealings in the ordinary course of business ( sec 4(5) ) must not: - engage in conduct contrary to or calculated to frustrate or defeat the purposes and policy of Act - engage in conduct that is unconscionable, misleading or deceptive, or likely to mislead or deceive - make any representation about supplier or goods or services unless person has reasonable grounds for beleiving that the representation is true

5 Application of the Act Section 5 Every Transaction in Republic unless exempted by s 5 (2). Promotion of goods or services or of supplier Exemptions: Goods or services supplied or promoted to the State Consumer juristic person with asset value or annual turnover equals or exceeds threshold determined by minister Exemptions granted by minister ito subsec 3 and 4 on application by regulatory authority for industry wide exemption Transaction that constitutes a credit agreement ito National Credit Act – but goods or services subject to credit agreement not excluded from ambit of Act Services under employment agreement NB Sec 5(6) Arrangements which must be regarded as a transaction between supplier and consumer within meaning of Act REQUIREMENTS OF FRANCHISE AGREEMENTS – section 7

6 Fundamental Consumer Rights Chapter 2 PART A Right of Equality in Consumer Market Protection against discriminatory marketing- (section 8) e.g exclude certain persons from accessing any goods or services or different treatment constituting unfair discrimination ito section 9 of the Constitution and with reference to Promotion of Equality and Prevention of Unfair Discrimination Act. Section 9 : Reasonable Grounds for Differential Treatment Equality Court exercises jurisdiction over this Part ( sec 10 (1) ) - Presumption – s 10(2)(a) differential treatment presumed unfair - Inferences court may draw –s 10(2)(b)

7 Fundamental Consumer Rights Cont. Part B – Consumer’s right to Privacy Sec 11 – Right to restrict unwanted direct marketing Definition – Direct marketing s1 Commission may establish Register. Any person may register a pre-emptive block against communication for purpose of direct marketing S 12 – Regulation of time for contacting consumers. Minister may prescribe days, dates, or times of days or public holidays

8 Fundamental Consumer Rights Cont. Part C – Consumer’s right to choose Sec 13 – Right to select suppliers Sec 14 – NB – Expiry and renewal of fixed term agreements Not applicable to transactions between juristic persons Consumer may cancel consumer agreement (s14 (2)(b)): - Upon expiry of fixed term ; or - At any other time with 20 business day’s notice in writing Supplier may cancel 20 business days after giving written notice to consumer of a material failure by consumer to comply with agreement On expiry of fixed term of consumer agreement automatically cont on a month-to-month basis unless consumer expressly- - directs supplier to terminate the agreement; or - agrees to renewal for a further fixed term Sec 14 (3) – Consequences of cancellation ito subsec (1)(b) Sec 15 – Pre – authorisation of repair or maintenance services Sec 16 - Right to cooling off period after direct marketing Sec 17 - Right to cancel advance reservation booking or order Sec 18 - Right to choose or examine goods Sec 19 – Rights with respect to delivery of goods or supply of service Sec 20 – Right to return goods Sec 21 - Unsolicited goods or services

9 Fundamental Rights Cont. Part D – Right to disclosure and Information Sec 22 Right to Information In Plain Understandable Language iro notice document or visual presentation Sec 23 Disclosure of Price of Goods or Services Sec 24 Product Labelling and Trade Descriptions- Not to mislead consumers- Note wide ambit of Trade Description Sec 25 Disclosure of rebuilt, remade or reconditioned goods Sec 27 Disclosure by Intermediaries of Prescribed Information – Relates to sale of property, goods or services - Does not include persons whose activities are regulated by other legislation

10 Fundamental Consumer Rights Cont. Part E – Right to Fair and Responsible Marketing Sec 29 – General standards for marketing of goods or services – Not to be false, misleading or deceptive in any way Sec 30 – Bait marketing – Not to mislead customers relating to actual availability of goods or services Sec 31 - Negative option marketing. Agreement entered into as result of an offer or inducement on the basis that goods or services are to be supplied, unless customer declines such offer or inducement – is void Sec 33 - Catalogue marketing Sec 34 - Promotional offers and trade coupons Sec 35 – Customer loyalty programmes Sec 36 – Promotional competitions

11 Fundamental Rights Cont. Part F- Right to Fair and Honest Dealing Sec 40 – Unconscionable Conduct – coercion, undue influence, pressure, duress, harassment, unfair tactics and to knowingly take advantage of customer’s inabilities. Sec 51 applies iro court proceedings Sec 41 – False, misleading or deceptive representations Sec 51 applies iro court proceedings Sec 42 – Fraudulent schemes and offers Sec 43 – Pyramid and multiplication schemes and chain letters Sec 44 – Right of consumer to assume and implied provision of every transaction or agreement that supplier has a legal right and authority to supply the goods

12 Fundamental Consumer Rights Cont. Part G – Right to fair, just and reasonable terms and conditions Sec 48 – Unfair, unreasonable or unjust terms e.g Price or terms of agreement must not be unfair, unjust or unreasonable Excessively One - sided agreements Terms adverse to consumer so that it is inequitable Sec 49 – Notices required for certain terms and conditions e.g limitation of risk or liability of supplier or assumption of risk or liability by consumer Sec 51 – Prohibited transactions, agreements, terms, conditions. Transactions or agreements which – defeat the purposes and policy of the Act mislead or deceive the consumer directly or indirectly waive or deprive a consumer of a right ito Act; or avoid a supplier’s obligation ito the Act; or set aside or override the effect of any provision of the Act NB Transaction, agreement, provision, term or condition of a transaction or agreement or notice is void to the extent that it contravenes this section NB Section 52 – Powers of the Court to ensure fair and just conduct, terms and conditions

13 Fundamental Rights Cont. Part H – Right to Fair Value, Good Quality and Safety Sec 54 - Right to demand quality of service Sec 55 – Right to safe, good quality goods Exception- goods bought at auction Sec 56 – Implied warranty of quality Sec 58 - Risks to be drawn to attention of consumer Sec 60 – Commission must promote industry wide codes of practice providing for effective systems regarding safety monitoring and recall. Commission has power to recall unsafe goods Sec 61 – Liability for damage caused by unsafe goods or as result of product failure, defect or hazard or as result of inadequate instructions or warnings. NOTE: Strict liability unless excluded under s 61(4)

14 Protection of Consumer Rights Section 68 – Where consumer exercises right ito Act or iro agreement certain responses by supplier prohibited Section 69 – Enforcement of rights by consumer: - (a) referring matter directly to Tribunal if such direct referral is permitted by Act with reference to dispute - (b) referring matter to ombud with jurisdiction if supplier subject to jurisdiction of ombud - (c) if matter does not concern supplier referred to in (b): - Industry ombud accredited ito s 82(6) if supplier subject to such ombud - apply to consumer court of province with jurisdiction over matter - referring matter to alternative dispute resolution agent; or - filing complaint with Commission; or - (d) approaching a court with jurisdiction over matter if all other remedies available to person ito national legislation have been exhausted Section 70 - Resolution of disputes between consumer and supplier by referring to alternative dispute resolution agent. Section 71 – Complaint to Commission by persons. Commission may also on its own motion initiate a complaint in certain instances. Section 72 – Investigation by Commission Section 73 – Actions available to Commission on outcome of investigation Section 74 – Provide for Consent orders Section 75 – Referral to Tribunal – In what circumstances?

15 Section 113 – Civil liability. Applies to employers and principals of agents. Liability thus extended for actions of agents Interim Relief - Section 114 Void Transactions or Agreements ito Act – Section 115. Of no force or effect at any time unless court declared that provision of Act does not apply to impugned agreement, provision or notice. Section 115 ( 2) Before commencing action for loss or damage in a civil court- Notice from Chairperson of Tribunal required Powers and Functions Of Commission Chapter 5 Parts B; C; Enforcement Functions Of Commission - Chapter 6 Section 99 Compliance notices - sec 100 Summons for purposes of investigation – section 102 Entry and Search - ss 103,104 and 105

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