You and Your Rights: Consumer Protection Act
- The Act aims for greater consistency in enforcement and legislation concerning commercial transactions
- Consumers are entitled to accountability and disclosure of information on the part of suppliers
- Responsibility lies with the provider to confirm a product has not caused damages
- If your consumer rights are violated you need not seek compensation in court but instead may go through the National Consumer Tribunal, among other bodies
- A company may not renew your contract without contacting you in writing first
The Consumer Protection Act (which came into force on 1 April 2011) seeks to protect consumers from unfair business practices, inferior products, and false or misleading marketing.
Specifically, the Consumer Protection Acts 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 five acts, including the Consumer Affairs (Unfair Business Practices) Act of 1988; Trade Practices Act of 1976; Sales and Service Matters Act of 1964; Price Control Act of 1964; and Merchandise Marks Act of 1941 (specifically Sections 2-13, and 16-17).
The Consumer Protection Act applies to the following:
- Every transaction occurring within the Republic of South Africa;
- Promotion or supply of any goods and services occurring within the Republic;
- And goods or services that are supplied or performed, in the Republic, in terms of transactions mentioned in the Act.
But it does not apply to the following:
- Goods or services promoted or supplied to the State;
- Industry-wide exemption being granted to regulatory authorities;
- Credit agreements, in terms of the National Credit Act, but not goods or services;
- Services under employment contracts;
- Agreements giving effect to collective bargaining agreements;
- And agreements giving effect to bargaining agreements (Section 213 of the Labour Relations Act
Who is a ‘Consumer’ under the Act?
Consumers are considered people to whom goods or services are marketed; or people who have entered into a transaction with a supplier; or a user or recipient or beneficiary of goods and services even if they are not a party to the transaction; and anyone who enters into an agreement to buy a franchise.
What are your Consumer Rights under the Act?
The Bill of Rights enshrines the rights of all South Africans – including consumer rights. The Consumer Protection Act further outlines these key consumer rights:
- The Right to Equality in the Consumer Market and Protection Against Discriminatory Marketing Practices;
- The Right to Privacy;
- The Right to Choose;
- The Right to Disclosure of Information;
- The Right to Fair and Responsible Marketing;
- The Right to Fair and Honest Dealing;
- The Right to Fair, Just and Reasonable Terms and Conditions;
- The Right to Fair Value, Good Quality and Safety; and
- The Right to Accountability by Suppliers.
Your Right to Protection Against Discriminatory Marketing Practices
This protects your right to:
- free and unlimited access to goods and services
- high-quality goods and services
- fair pricing of goods and services
- lodge complaints
Your Right to Privacy
This protects your right to:
- restrict unwanted direct marketing
- discontinue receipt of direct marketing at any time
Your Right to Choose
This protects your right to:
- select the supplier of your choice
- cancel or renew a fixed-term agreement
- request pre-authorisation for repairs or maintenance service
- cancel direct marketing contracts within the cooling-off period
- cancel advance reservations, bookings or orders
- choose or examine goods, even after purchase and delivery
- return goods and seek redress for unsatisfactory services
- retain and not pay for unsolicited goods or services
Your Right to Disclosure of Information
This protects your right to:
- information in plain and understandable language
- disclosure of prices of goods and services
- product labelling and trade description
- clear disclosure of reconditioned or grey market goods
- sales records
- disclosure by intermediaries
- identification of deliverers, installers and others
Your Right to Fair and Responsible Marketing
This protects your right against:
- bait marketing
- negative option marketing
- direct marketing
And ensures your right of protection in:
- catalogue marketing
- trade coupons and similar promotions
- customer loyalty programmes
Your Right to Fair and Honest Dealing
This protects your right against:
- unconscionable conduct
- false, misleading or deceptive representations
- fraudulent schemes and offers
- pyramid and related schemes
- over-selling and over-booking
And protects your right to:
- assume that suppliers are entitled to sell goods
- procedure for sales by auction
- changes, deferrals and waivers, and substitution of goods
Your Right to Fair, Just and Reasonable Terms and Conditions
This protects your right to:
- obtain notice for certain terms and conditions
- obtain free copies of agreements/contracts
- refuse prohibited transactions, agreements, and terms or conditions
- approach the Court to ensure fair and just conduct, terms and conditions
And protects you against:
- unfair, unreasonable or unjust contract terms
Your Right to Fair Value, Good Quality and Safety
This protects your right to:
- demand quality service
- safe, good quality goods
- implied warranty of quality
- a warranty on repaired goods
- receive warnings on the fact and nature of risk
- recovery and safe disposal of designated products or components
- have products monitored for safety and/or recalled
- claim damages for injuries caused by unsafe/defective goods
Your Right to Accountability from Suppliers
This ensures your right to protection:
- in lay-bye agreements
- with regard to prepaid certificates, credits and vouchers, and access to prepaid services and service facilities
So, what are your rights when it comes to the GOODS you buy?
Examples of goods under the Act would include
- Anything that is marketed for human consumption (such as food, petrol)
- Anything tangible or touchable.
- Any literature, music, photographs, films, games, information, data, software, codes or other intangible goods or a licence to use the product (a software licence).
- A legal interest in land or other immovable property.
- Gas, water, electricity etc
Products have to show contents and trade details. For example, if you buy a bottle of cool drink, the country of origin and the presence of genetically modified ingredients must be on the label. If a South African consumer suffers loss or injury because a foreign-made product was wrongly or inadequately labelled, both the local retailer and the foreign supplier could be held liable.
Also, if a product has a risk of an unusual nature that you as an ordinary consumer wouldn’t be expected to know about, the supplier is compelled to bring these warnings and instructions to your attention in plain and understandable language.
Every foreign company that sells goods and services destined for South African consumer markets will have to comply with the Act, and if in breach of its product liability or labelling provisions, could be sued for damages.
The Act places the burden of proof on the supplier and not, as in the past, on the consumer. Strict liability, as this is known, means that the onus is on the supplier to prove that the product was not defective. The consumer only has to show harm or loss and that this was caused by the product concerned. This gives you greater legal clout when lodging product liability damages claims.
Clear product pricing
If you see a promotion for milk at R5, but have to pay R7 at the till, it is your right to pay the lowest amount. It is illegal for anyone to hide or fake a price.
Companies must now offer you a “cooling off” period to cancel an advance reservation, booking or order. This means you can decide to cancel your order after you’ve had time to think about your decision. All you have to do is notify the company in writing, and they’ll have 15 days to pay you back in full.
If goods have already been delivered to you, you’ll have to return them before you get your money back. This applies only where you bought goods in response to direct marketing, which is when things are advertised to you directly, in person, in the mail, or electronically.
The Act makes it illegal for companies to automatically renew contracts when they expire. From now on, companies will have to contact you – in writing – between 40 and 80 business days before your contract expires. They have to give you the option to continue your contract, change its terms or cancel it. The contract will continue on a month-to-month basis until you make your choice.
You will also be able to cancel contracts at any time. No more waiting for the full 24 months to end. If you’re unhappy, you can give the company 20 days’ notice – in writing. While you won’t have to pay the full value of the contract, you will still have to pay anything you owe the company up to the date of cancellation. The company might also charge you a cancellation fee but of no more than 10 percent of the amount still owed.
Companies must also use plain and simple language when explaining a contract, or terms and conditions. It is the duty of the supplier of any goods or services to tell you all the conditions of a contract that can cause problems later. For example, before signing a cell phone contract, you should know that you have to pay for one month after cancellation. Suppliers and service providers with whom you hold contracts, must also communicate with you when they increase prices.
Especially in the car industry, this means buying it as you see it. Under the Act, suppliers have to let you know of all defects – both obvious and hidden – of your purchase, and you have to agree to buying the product in that condition. The Act specifically identifies the consumer’s rights to good quality products, in good working order, free of any substantial defects, and fit for their purpose.
What are your rights when it comes to the SERVICES you receive?
Examples of services would include:
- Any work performed by one person for the direct or indirect benefit of another person;
- The provision of education, information or advice or consultation (except if exempted);
- Banking services;
- Provision of any accommodation or sustenance (hotels, restaurants, take-away outlets etc);
- Any entertainment or similar product;
- Access to any electronic communication infrastructure (internet);
- Access to or use of any premises or other property (except for a lease in terms of the National Credit Act);
- Even stokvels, saving clubs or a church fete would fall under the Act as long as “goods or services” are supplied to its members.
Marketing and Privacy
According to the new Act, salespeople cannot bombard you with calls and leaflets at certain times of the day and night, and on certain days of the year. You can also demand that any company that contacts you - by phone calls and SMS - remove your name and details from their database. If you have opted out and still get called, the company may be liable for a fine.
When filling out a contract or membership form, online or offline, you must be given the choice to specify that you don’t want to be bothered by advertising calls. You can also opt out by replying to a marketing SMS with the word STOP. You can also put your name on a blocking registry to prevent telemarketers from contacting you in the first place.
Bait marketing (the advertising of products that are unavailable as a ploy to attract consumers) is prohibited by the new Act. Advertisers cannot offer products or services if they don’t reasonably expect to satisfy the likely demand. For example, a shop cannot run a promotion for a cheap TV in July if stock will only be available in August.
Companies are not allowed to charge you an exorbitant R5 or R10 to enter an SMS or MMS competition. They must stick to the usual network rates.
Returns, Refunds and Repairs
You have the right to return unsafe or defective items within six months of purchase or delivery. You are entitled to return the item to the supplier - without any penalty, at the supplier's risk and expense - if it is defective or not what you were sold. YOU can also decide whether you want a refund, a replacement or a repair - not the company. But remember, this applies only to the general wear and tear of your appliances, not gross negligence on your part. The supplier may charge you a small amount to repackage the product.
If you opt for a repair and the product fails again within three months, the supplier is obliged to replace the item or refund you what you paid for it. The manufacturer, retailer, importer and distributor will all be responsible for broken, bad quality or unsafe goods. For example, if you buy a stove and one plate doesn’t work. You take it back to the shop, who says it’s the manufacturer’s fault and will take a long time to get fixed because it was made in China. You are now be able to demand an immediate replacement or a refund from the shop for this or any goods bought after 25 April 2010.
All repairs must be quoted. Companies have to provide you with an estimate for the work – which you must approve – and cannot charge you more than that estimate. If more work is required above and beyond the estimate, they first have to get the go-ahead from you. Companies also can’t charge you for preparing their quote, unless you’ve agreed to that. Also, if you get a quote to have your house painted within a week, not only must the paint and job be of good quality, but if It is not finished within a week, the company will have to let you know beforehand.
Consumers are also entitled to refunds if goods do not perform in a way they were made to believe they would; or if goods are inherently faulty and they were not aware of this at the time of purchase; or if the goods turn out to be not the same as those shown to them prior to delivery.
Same quality and service for all consumers
If you enter a shop and get treated differently from someone else because you are not dressed like them or are not the same sex, age, sexual orientation or race as them, you can complain to the National Consumer Commission to get your rights enforced.
Goods must be delivered at an agreed date, time and place. If not, you will be free to accept or cancel the agreement – it’s your choice. Companies are also obliged to deliver goods that match the sample or description of the product. You have the right to examine your purchases before accepting them, and reject them if you’re not happy. If you didn’t get a chance to examine the product and are unhappy with it, it can be returned at the supplier’s expense.
The supplier is entitled to charge you a “reasonable” cancellation fee if you cancel a booking or reservation. The “reasonableness” however depends on how early you cancel and if the supplier can fill your now-empty spot. If, however, the booking is cancelled because of the death or hospitalisation of the person who made the booking, no cancellation fee can be charged.
Overselling and overbooking are illegal
If you book a flight which is overbooked when you arrive to check in, you can insist on being put on the flight because that is what you paid for. If it is impossible, you can demand a refund with interest from the date of payment plus compensation for the money lost for missing work. This doesn’t apply if the airline has informed you of the problem beforehand or if the situation was beyond their control.
What can you do if these rights are violated?
The Consumer Protection Act aims to promote consumer activism by making provision for the accreditation of consumer groups tasked with lodging complaints on behalf of consumers, as well as making available support for activities, such as consumer advice, education, publications, research and alternative dispute resolution through mediation or conciliation.
As such, the Act gave rise to the establishment of the National Consumer Commission, a body assigned to investigate consumer complaints, as well as the National Consumer Tribunal, which was created by the National Credit Act in September 2006, and is responsible for the adjudication of violations and transgressions of the National Credit Act and the Consumer Protection Act.
The Consumer Protection Act does not restrict you to suing suppliers in court, which means you can avoid paying expensive legal fees. The avenues of recourse available to you include:
- The National Consumer Tribunal;
- The National Consumer Commission
- The appropriate ombudsman;
- Alternative dispute resolution (such as mediators or arbitrators);
- A provincial consumer affairs court or criminal court.
However, the Act does not stipulate which of these avenues you must approach first.
A complaint can be lodged by:
- Anyone who uses the goods or services that are the subject of a complaint;
- Anyone who is authorised to act on your behalf if you cannot act in your own name;
- Anyone who acts as a member of, or in the interest of, a group or class of affected persons;
- Anyone who acts in the public interest – with the permission of the National Consumer Tribunal or the court to which the complaint is directed; and
- An association that acts in the interest of its members.
NATIONAL CONSUMER COMMISSION
(previously the Office of Consumer Protection in the Department of Trade and Industry or DTI):
Customer Contact Centre: 0861 843 384
National Consumer Commission: (012) 394 1436 / 1558 /1076
The DTI, National Consumer Commission, Consumer Complaints, Private Bag X84, Pretoria 0001
Complaint forms can be downloaded at http://www.dti.gov.za/ccrd/complaint forms.html
NATIONAL CONSUMER TRIBUNAL (NCT):
Contact Centre: (012) 663 5615
NCT Website: www.thenct.org.za
OMBUDSMAN and REGULATORY BODIES
FIVE Ombuds offices and two regulatory bodies (all in the FinanciaT Services Sector) have joined forces and initiated one share call number, 0860 OMBUDS (0860 662 837), for consumers to contact: The Credit Ombud, The Banking Ombud, The Long term Insurance Ombud, The Short Term Insurance Ombud, The Financial Services Board, The FATS Ombud and the National Credit Regulator.