1. N Melville

2. It is a type of "decentred regulation“
The Theory
Self-regulation entails the regulation or governing of an industry by the role players in that industry.
It is a type of "decentred regulation“
DP Strachan “An evaluation of the self-regulation of promotional competitions in South Africa”

3. The Theory
Self-regulation can take on many forms, but broadly one can distinguish between voluntary self-regulation and self-regulation that is backed up by legislation.

4. The Theory
It could be regarded as "co-regulation", which was developed by an industry in order to avoid government regulation, but could also be created as a result of government's pressure on or directive to an industry.

5. The Theory Benefits of voluntary self-regulation Flexibility
Cost effectiveness
Benchmarking of best practice
Naude et al:
Commentary on the Consumer Protection Act

6. The Theory Benefits of voluntary self-regulation
Self-regulation can deal with questions of complex subjective judgment, such as ‘fairness’ better than the law
UK National Consumer Council
Models of Self-regulation

7. The Theory Weaknesses Strong tendency to anti-competitive behaviour,
Lack of public confidence
The risk that the participants do not take the requirements seriously
Confusion created by a plethora of codes

8. The Theory
Weaknesses
Real and perceived doubts about the ability of of trade bodies to both:
Represent the interests of their members &
Aspire to a public interest role, particularly where the self-regulator is responsible for enforcement or is involved in adjudicating disputes between consumers and traders. 

9. The Practice: A tale of 2 Codes
Banking Code 2004
Former Public Protector Selby Baqwa
“I can say with my hand on my heart [the Banking Code/ Ombudsman] is functioning credibly, as banks and the public respect [it]”
(Gail Cameron, Authentic African Leadership, p.167)

10. The Practice: A tale of 2 Codes
Banking Code 2004: REASONS SUCCESS
35 Banks
Strong coercion from regulator (Reserve Bank) &
trade association; binding determinations
Demarcation of Prudential (Reserve Bank) &
Market Conduct
Also: Du Toit Reflections on the South African Code of Banking Practice
TSAR

11. The Practice: A tale of 2 Codes
Banking Code 2004: WEAKNESSES
Drafted and maintained by the Banks
Applied only to members of the Banking
Association South Africa
Imposed obligations on consumers
None of the provisions legally binding in court; or may be used to influence the interpretation of the legal relationship between bank and consumer or give rise to a trade custom or tacit contract

12. The Practice: A tale of 2 Codes
Consumer Goods Code 2015
S 82(2) The Commission
acting on its own initiative, or
in response to a proposal from persons conducting business within a particular industry,
may recommend a proposed industry code to the Minister

13. The Practice: A tale of 2 Codes
Consumer Goods Code 2015 AFTER (a) publishing it for public comment; (b) considering any public submissions; (c) consulting with— (i) persons conducting business within the relevant industry; and (ii) relevant accredited consumer protection groups

14. The Practice: A tale of 2 Codes
Consumer Goods Code applies to:
All suppliers in the consumer goods and services industry Supply Chain that provide, market and/or offers to supply Goods and Services to Consumers

15. The Practice: A tale of 2 Codes
Consumer Goods Code
Failure to comply with Code amounts to a contravention of section 82(8) of the Consumer Protection Act
Performance of Code to be monitored
by NCC
Power to amend/ repeal

16. The Practice: A tale of 2 Codes
Consumer Goods Code: Weaknesses
Preaching to the converted/ catch 22
Coverage of industry
Nielsen research: 134,000 small and independent retailers; 4,500 supermarkets & 2,758 convenience stores
CGSO < 1000 participants (but big chains)
[EARLY DAYS]

17. The Practice: A tale of 2 Codes
Consumer Goods Code: Weaknesses $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

18. The Practice: A tale of 2 Codes
Consumer Goods Code: Weaknesses
Enforcement
No cases before NCC or Tribunal re failure to comply with consumer codes;
Focus of regulator (NCC):
“Identify endemic, harmful business
practices for investigation/ prosecution”

19. The Practice: A tale of 2 Codes
Consumer Goods Code: Weaknesses
Lack of binding power
CGSO may not make binding determinations
If concludes that there is no reasonable probability of the parties resolving dispute through the process provided for
terminate the process by notice to the parties
party who referred the matter may file complaint with the Commission

20. DANGER

21. DANGER
If the government determines that there is wide scale non-compliance with the legislation, there is every likelihood of it intervening with draconian regulation, with major cost and other implications for the Industry, as is happening in the financial industry with the Twin Peaks initiative.

22. ADVICE
ACCC Research
Codes of conduct tend to be more effective when the self-regulatory body:
• has widespread support of industry
• comprises representatives of the key stakeholders, including consumers, consumer associations, the government and other community groups
• operates an effective system of complaints handling.

23. He who knows when he can fight and when he cannot, will be victorious.
ADVICE
He who knows when he can fight and when he cannot, will be victorious.
Sun Tzu
The Art of War