|Consumer Protection Act: Overview|
By Roy Bregman © 2011 Bregman Attorneys
What follows is a mere summary of the Consumer Protection Act (CPA). No reliance must be placed on the content without first seeking legal advice. For a more detailed summary of the Act, go here.
Like the National Credit Act established the National Consumer Tribunal, the CPA establishes the National Consumer Commission which enforces the provisions of the CPA and protects consumers.
Who does the CPA protect?
Any person acting personally or in a representative may approach a court, the National Consumer Tribunal or the National Consumer Commission to allege that a consumer right entrenched in the CPA has been infringed.
What does the CPA Regulate?
The CPA regulates the goods and services industries.
Goods include anything marketed for human consumption, a tangible object including any medium on which anything is or may be written or encoded, any literature, music, photograph, motion picture, game, information, data, software, code or other intangible product written or encoded on any medium, or a licence to use any such intangible product and a legal interest in land or any other immovable property.
Services include any work or undertaking performed by one person for the direct or indirect benefit of another, the provision of any education, information, advice or consultation, any banking services, or related or similar financial services, or the undertaking, underwriting or assumption of any risk by one person on behalf of another, the transportation of an individual or any goods and the provision of any accommodation or sustenance and other similar services.
Cancellation of Advance Bookings, Orders & Reservations
Essentially, consumers have the right to cancel a reservation or pre-booking for any goods or services and to cancel any order for any goods or services.
Expiry and Renewal of Fixed-Term Agreements
Consumers may cancel a fixed-term agreement (of any term) at any time, provided written notice is given to the supplier at least 20 business days prior to the intended date of cancellation. Where the consumer prematurely cancels the agreement, the consumer remains liable to the supplier for any amounts owed to the supplier in terms of that agreement up to the date of cancellation and the supplier may impose a reasonable cancellation penalty.
Quotes and Estimates
Suppliers may not charge consumers for repairs, maintenance work or any other diagnostic work unless the charge was previously disclosed to the consumer and the consumer subsequently accepted the charge. Therefore, suppliers must provide a quote or estimate prior to working on any goods.
The Right to Quality Service
Where a supplier undertakes to perform any service for or on behalf of a consumer, the consumer has the right to the timely performance and completion of those services. The rendering of services or the goods required to perform any service must therefore be in a manner and of a quality that persons are generally entitled to expect and be free of any defect.
The Issue of Strict Liability
The CPA imposes strict liability on producers, importers, distributors or retailers to supply safe goods and imposes strict liability in respect of product failure, defective and hazardous goods.
Warranty on Repaired Goods
A mandatory three-month warranty period is imposed on service providers who install any new or reconditioned part during repair or maintenance work. This three-month period is calculated from the date of installation of the new or reconditioned part. Service providers include persons who promote, supply or offer to supply any service.
Right to Return Goods
A consumer is entitled to return unsafe or defective goods, including goods that are not of a good quality. This right is enforceable for a period of six months, calculated from the date of the delivery of the goods to the consumer. Where the goods are so returned, the consumer does so without penalty and at the supplier’s risk and expense.
Unsolicited Goods or Services
A consumer who is the recipient of unsolicited goods or services is not obliged to pay for such goods or services. Goods or services shall be said to have been unsolicited if the consumer did not implicitly or expressly request the goods or services. The only exception is where the consumer has an agreement with the supplier that goods or services shall be supplied from time to time without further approval or request. However, in the latter instance, any goods or services that materially differ from that agreed upon shall be deemed to be unsolicited.
Right to Cancel a Transaction or Agreement emanating from Direct Marketing
Direct marketing means approaching someone (in person or by mail or electronic communication, phone, fax, SMS, email, etc) to try to sell goods or services to that person or to ask him or her to make a donation of any kind. Where a transaction resulted from direct marketing, the consumer to such a transaction may rescind the transaction without reason or penalty. To do so, the consumer must give written notice to the supplier of his intention to cancel the transaction in question. This notice must be given within five business days of the transaction or agreement being concluded or, within five business days of the goods having being delivered to the consumer.
Marketing Standards for Goods & Services
Goods or services must not be promoted in a misleading, fraudulent or deceptive manner. Thus, the nature and the use of the goods or services cannot be distorted nor may a manufacturer, producer, importer, distributor or supplier promote or supply goods or services that are unlawful. Promotion of goods or services must so be done in a manner that does not violate the dignity of any person or is based on a ground of unfair discrimination.
Direct Marketing, Installation and Delivery
Any person who directly markets any goods or services and subsequently concludes a transaction or agreement with a consumer must inform the consumer of the right to rescind the agreement.
Catalogue or Electronic Marketing
The requirements regarding catalogue or electronic marketing apply where an agreement for the supply of goods or services is not concluded in person, but is concluded telephonically at the request of the consumer, by postal order, fax or internet transaction or in any other instance where the consumer does not inspect the goods before concluding the agreement. The requirements do not extend to an agreement or transaction that ensued from direct marketing.