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The Customer Protection Act

- Featured article by LAWYERS-ONLINE.CO.ZA

Do you know your rights?

This Act is the first legislation of its kind in South Africa. South Africans are now amongst the most protected consumers in the world. The CPA firmly places the responsibility for ensuring adequate standards of good and services in the hands of those who provide them. The provisions of the Act imply MORE risk, admin and hard work for many businesses, but those that provide quality products and excellent service based on sound business principles, will have little to fear. The CPA is an opportunity for companies to promote their compliance to customers as proof of how much they value and respect their business. The aim of the CPA is to strive to protect consumers against unfair business practices.

Because the CPA covers both goods and services, it applies to ANYONE who manufactures or sells something. It is important to note that a consumer is not only the person to whom the goods or services are promoted or sold, but also the actual user. This means that anyone who uses the item has recourse for complaint even if they are not the one who actually bought it.

Service (as defined in Chapter 1 of CPA) includes any work or undertaking performed by one person for the direct or indirect benefit of another; irrespective of whether the person promoting, offering or providing the service participates in, supervises or engages directly or indirectly in the service.

Some examples include: education, banking, financial and insurance services, information, consultation, transportation, accommodation, (access to) entertainment, access to electronic communication infrastructure, access to an event, right of occupancy and rights of franchisee. Goods are defined as anything marketed for human consumption.

The Act lays down nine fundamental rights for consumers: the right to equality in the consumer market; 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 ter ms and conditions; the right to fair value, good quality and safety; and the right to hold suppliers accountable.

We will now look closely at each fundamental right – the right to equality in the consumer market and protection against discriminatory marketing practices. This means that you have the right to the following: not to be unfairly discriminated against in access to goods or services: suppliers cannot unfairly limit access to goods and services to a consumer, or class of consumers based on any ground of discrimination; and unfairly discriminate by prioritising any consumer group over others when marketing, selling or distributing their goods and services. High quality goods and services : suppliers cannot vary the quality of their goods and services in a discriminatory manner; and consumers have the right to query the inferior quality of goods and services. Fair pricing of goods and services: a supplier cannot unfairly charge different prices for the same goods and services to different consumer based on a recognized ground of discrimination; consumers should be treated equally, irrespective of gender, race, socio - economic status or geographic l ocation; consumers have the right to take these issues to the Equality Court or the Commission, who will refer valid complaints to the Equality Court.

The right to privacy - A consumer has the right to: restrict unwanted direct marketing: this includes unwanted or unsolicited correspondence, SMSs, telephone calls, letters or spam emails, and to decline participation in marketing surveys; discontinue the receipt of direct marketing at any time; the right only to be contacted during the times stipulated in the Act and Regulations.

The right to choose - A consumer has the right to: not to be obligated to buy additional products or services from a supplier or designated third party unless the supplier can show the economic or convenience benefit; or the goods and services are offered separately and the price is disclosed; cancel or renew a fixed term agreement provided they request the cancellation in writing; request pre - authorisation for repairs or maintenance services; cancel contracts which arose as a result of direct marketing, within the cooling off period (this is generally five business days); cancel advanced reservations, bookings or orders where the supplier may request advance deposit for such booking and charge a reasonable charge for the cancellation of such advanced reservations, bookings or orders; choose or examine goods, even after purchase and delivery; return goods and seek redress for unsatisf actory services; and retain and not pay for unsolicited services, subject to certain provisions in the Act.

The right to disclosure of information - You have the right to: information in plain and understandable language; disclosure of prices of goods and services; product labelling and trade description; be informed if goods are reconditioned or grey; be provided with sales record for each transaction setting out the in formation prescribed by the Act; disclosure by intermediaries; and ask for identification of deliverers, installers or other related parties.

The right to fair and responsible marketing - As a consumer you have the right to: protection against bait marketing, which is now prohibited; protection against negative option marketing, which is now prohibited; protection against unwanted direct marketing; protection in catalogue marketing; and protection in customer loyalty programmes.

The right to fair and honest dealings - A consumer has the right to: protection against unconscionable conduct; protection against false, misleading or deceptive representations; protection against fraudulent schemes and offers; protection against pyramid and related schemes; assume that suppliers are entitled to sell goods; open and honest auctioneering practices; fair sub stitution and changing of goods; and protection against over - selling and over - booking.

The right to fair, just and reasonable terms and conditions - You have the right to: protection against unfair, unreasonable or unjust contract terms; obtain notice for certain terms and conditions; obtain free copies of agreements/contracts; refuse prohibited transactions, agreements, terms or conditions; and approach the court to ensure fair and just conduct and terms and conditions.

The right to fair value, good quality and safety - A consumer has the right to: demand quality service; safe, good quality goods; implied warranty of quality; warranty on repaired goods; receive warnings on the fact and nature of risks; recovery and safe disposal of designated products or components; products monitored for safety or recalled; claim damages for injuries caused by unsafe or defective goods.

The right to accountability from suppliers - A consumer has the right to: protection in lay - bye agreements; protection with regard to prepaid certificates, credits and vouchers, and access to prepaid services and service facilities. An example is that prepaid cards have to be valid for three years after issue.

The Act, however, does not cover any contracts you signed, transactions you entered into or products you might have bought prior to April 1, 2011. 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 etc ).

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.

Date: 8th July 2013
Legislation: Consumer Protection Act, 68 of 2008

The Customer Protection Act - Legal Information South Africa