CONSUMER Chapter 30

PROTECTION
INTRODUCTION
Single piece of consumer protection legislation
 Codified consumer law
 What does this mean?

Previous legislation was outdated and fragmented

First of its type in SA
Contains
 Rights of the?
 Obligations & responsibilities of?
 PURPOSE OF THE CPA

• To promote a fair, accessible, s u st a i n a b l e a n d responsible

m a rke t p l a c e for consume r products a n d services;
• To establ i sh n a t i on a l n o r m s a n d s t a n d a r d s re l a t i ng to consumer
protection;
• To provide for improved s t a n d a r d s of consume r information;
• To prohibit c e rt a i n u n f a i r m a r k e t i n g a n d business practices;
• To promote responsible consume r behaviour;
• To promote a consistent legislative a n d enforcement framework
re la ti ng to consume r t r a n s a c t i o n s a n d a gre e m e nt s;
• To esta bl i sh t h e Na t i ona l C onsum e r Commission.
APPLICATION OF THE ACT
CPA applies to every ___________ within SA for the
___________ of goods/services and to the ___________ of
goods/services and to the ____________________________
themselves.

Does NOT apply to:

 ( a)
 ( b)
 ( c)
 ( d)
 ( e)
 ( f)
 ( g)

* Please do not confuse this with the situations in which the NCA does not
apply
“TRANSACTION”
Definition:________________________________________________________
________________________________________________________________
Once off transactions?
Offers to enter into a franchise agreement?
Transactions where the supplier resides/has its principal place of business outside
of SA?
 Different to the NCA
 DEFINITIONS
__________: include anything marketed for human consumption, any tangible object,
literature, music, photographs, software, legal interests in land, etc.
_________ : work performed by a person for the direct or indirect benefit of another
e.g. advice, education, entertainment, occupancy of land, etc.
________:
 Goods: includes selling, renting, exchanging & hiring in the ordinary course of business for consideration.
 Services: to sell services; to perform or provide services; and to grant access to
premises/events/activities/facilities in the ordinary course of business for consideration.

________: person who markets any goods/ services.

________: supply or to promote.
________: advertise, display or offer to supply goods or services in the ordinary
course of business for consideration.
_________: any person (including a JP unless excluded) to whom goods or services
are marketed to him in the ordinary course of the supplier’s business.
FRANCHISE
AGREEMENTS
Specifically regulated by the CPA
Franchisee =
Franchisor =
Franchise agreement must:
 (a)
 (b)
 (c)

Cooling off Right

 Franchisee __________ cancel the agreement for _______
reason
 Cost/penalty for cancelling?
 Within how many days may it be cancelled?
 How must notice be given to franchisor?
CONSUMER RIGHTS
E quality

Fai r Value,
Good Quality P rivacy
& Safety

Fair, J u s t &
Reasonable Choice
T’s & C’s

Honest Disclosure &

Dealing Info

Fair &
Responsible
Marketing
RIGHT OF EQUALITY
S8: prohibits _____________ from unfairly discriminating a g a in s t an y
person/category of persons on a n y grounds listed in the
Constitution/PEPUDA
 What are these grounds?

The CPA does allow for?

Consumer who is alleging breach of equality provision?
RIGHT TO PRIVACY
S11 & 12 protect right to privacy by placing restrictions on direct marketing
Direct marketing = _________________________________________________
_______________________________________________________________
S11: Right to restrict direct marketing / pre-emptively block it
S12: periods which direct marketing is prohibited
 Specific days/times

S16: cooling off period for contracts concluded as a result of?

 Give notice within _______ business days from later date on which transaction was
concluded or when goods were delivered
 Penalty?
RIGHT TO CHOOSE
Right to choose

E xpiry/renewal
Select suppliers
of FTA

Pre-
Cancel advance
authorisation of
bookings
repair

Choose/exam ine
Delivery/supply
goods

Unsolicited
Return goods
goods/services
RIGHT TO CHOOSE - RIGHT
TO SELECT SUPPLIERS
S 13
Can the supplier as a condition of entering into transaction, require a consumer
to purchase goods or services from the supplier or designated 3rd party?
 AKA?

Supplier may use bundling if he can prove:

 (a)
 (b)
 (c)

Franchise agreements?
 RIGHT TO CHOOSE – EXPIRY & RENEWAL
OF FIXED TERM AGREEMENTS
S 14
May not exceed ______________ period prescribed by ______________
Cancelling the agreement on the expiry of the agreement
 Penalty/charges?
 Consumer ____________ liable for amounts owed

Cancelling the agreement before expiry of the agreement

 Notice must be in _____________
 Notice must be given to the supplier ________ business days in advance
 Cancellation fee/penalty?

Notification of expiry must be sent to the consumer in writing between

________________before expiry
No express termination?
 RIGHT TO CHOOSE - PRE-AUTHORISATION
OF REPAIR & MAINTENANCE SERVICE
S15
Applies to transactions/consumer agreements with price value above threshold
Only applies to:
 (a)
 (b)
 (c)

Can a supplier charge for maintenance/repairs if a quote was not provided?

If a quote was declined and work was authorised?
If quote was provided, can the supplier charge more than the estimate?
RIGHT TO CHOOSE - CANCEL ADVANCE
RESERVATIONS, ORDERS/BOOKINGS
S17
Reasonable cancellation fee
A cancellation fee cannot be charged if consumer is unable to honor the
reservation, booking/order due to:
 (a)
 (b)
 Exception?
 Special order goods =
RIGHT TO CHOOSE –
CHOOSE/EXAMINE GOODS
S18
C o nsum e r m a y n ot be liable for loss or
d a m a g e to goods displayed by a supplier
despite a n y notices unless?

Goods which are displayed/sold from open

stock
Consumer agrees to make the purchase of
goods based on a description/sample
RIGHT TO CHOOSE – DELIVERY
OF GOODS/SUPPLY OF SERVICES
S19
Delivery at whose cost?
 Implied term of every transaction
 What is an implied term?

Goods remain at the risk of the ____________ until the consumer has accepted
delivery
Is the consumer entitled to inspect the goods before accepting delivery?
 Reject all
 Accept all
 Accept agreed and treat non agreed as unsolicited goods
 Non agreed goods =

Does this section apply to franchise agreements/S46 of ECTA?

 RIGHT TO CHOOSE – RIGHT TO
RETURN GOODS
S20
Consumer may in certain conditions return goods within ______ business days after delivery
Does this replace the right to return unsafe/defective goods or any other right?
Consumer may return the goods and receive _______ refund if:
 (a)
 Returned at ________ cost & risk
 (b)
 Returned at ________ cost & risk
 (c)
 Returned at ________ cost & risk

Certain goods may not be returned for health reasons

 Example?

Goods which have been disassembled/altered etc?

Goods which were opened and packaging damaged?
Goods which weren’t opened & still in original condition?
Goods which were opened and repackaged in original packaging?
 RIGHT TO CHOOSE –
UNSOLICITED GOODS
S21
Will be unsolicited if:
 (a)
 (b)
 (c)
 (d)
 (e)
Above will only be unsolicited :
 (a) Supplier informs consumer within ______ business days after delivery that they were
delivered in error and fails to collect within __________________ after it informed the
consumer
 (b) Goods are delivered but are addressed to someone else. An ordinary alert
consumer would have realised they were to be delivered to another person &
they were not collected within _____ business days
 RIGHT TO CHOOSE –
UNSOLICITED GOODS CONT.
Does it create a duty on the consumer to inform supplier of misdelivery?
 If supplier is not informed?
 Consumer in possession of unsolicited goods may:
 (a)
 (b) Lawfully retain the goods
 Ownership?
 Claims to the goods?
 Aim of this section is to: ______________________________________________
_________________________________________________________________
RIGHT TO DISCLOSURE &
INFORMATION
Right to disclosure

Plain &
u n derstan d able Price
language

Labelling & t rade Reconditioned &

descriptions grey m ark et goods

Sales records Intermediaries

Identification of
deliverers/installers
 RIGHT TO DISCLOSURE – PLAIN &
UNDERSTANDABLE LANGUAGE
Any notice, document/visual representation required ito CPA/ other law must be in?

Plain language = _________________________________________________

_____________________________________________________________
 Factors taken into account?
 RIGHT TO DISCLOSURE –
S23
PRICE OF GOODS/SERVICES
Can a retailer display goods for sale without displaying the price?
Price is adequately displayed if _______________________________________________
______________________________________________________________________
Brochures, catalogues, etc
 Must be?
Supplier may not require consumer to pay price higher than the one displayed
 Unless?
Two prices displayed?
First price covered by second price?
Price with obvious error?
Unauthorised person changes price?
If discount is advertised, price is deemed to include discount
Does not apply to:
o (a)
o (b)
RIGHT TO DISCLOSURE –
PRODUCT LABELING &
TRADE DESCRIPTIONS
S24
Trade descriptions =
____________________________
___________________________________________
___________________________________________
____
Can a supplier change/use a trade description which
will mislead the consumer?
Categories of goods required to have a trade a
description
Genetically modified ingredients/components
RIGHT TO DISCLOSURE – RECONDITIONED
& GREY-MARKET GOODS
S25
Supplier must apply notice to goods that have been rebuilt, reconditioned, remade
or which are grey market
Grey market = ___________________________________________________
_______________________________________________________________
RIGHT TO
DISCLOSURE –
SALES RECORDS
S26
Record of each transaction
Information to be included?

Does not apply to:

 (a)
 (b)
 RIGHT TO DISCLOSURE –
DISCLOSURE BY INTERMEDIARIES
S27
Intermediary = _____________________________________________________
Records transactions/relationships
RIGHT TO DISCLOSURE – ID OF
DRIVERS & INSTALLERS
S28
Person engaged in direct marketing, performing services, delivering/installing
goods at consumers home must?
 RIGHT TO FAIR &
RESPONSIBLE MARKETING
Aim:
General standard and specific types of marketing are regulated
CPA does not apply to credit agreements
 But CPA can apply to marketing of credit agreements
RIGHT TO FAIR & RESPONSIBLE MARKETING
Right to Fair
& Responsible
Marketing

General Bait
standards marketing

Negative
Direct
option
marketing
marketing

Catalogue
Trade coupons
marketing

Customer Promotional
loyalty
competitions

Alternative Referral
work schemes selling

No capacity to
act
MARKETING – GENERAL
STANDARDS
S29
Prohibits ____________________________________________ from marketing
any goods/services in _______________________________________________
_______________________________________________________________
 MARKETING – BAIT
MARKETING
S30
Can a supplier advertise goods/services as being available at a specific price in a
manner that will mislead/deceive consumers in relation to the actual availability
 “until stocks last”

If supplier offers to procure another person to supply same/similar goods

 MARKETING – NEGATIVE
S31
OPTION MARKETING
NB: Negative option marketing = _____________________________________
________________________________________________________________
Offers to modify existing agreements?
Agreements entered into as result of negative option marketing are?
MARKETING – DIRECT
MARKETING
S32
NB: Direct marketing = ______________________________________________
________________________________________________________________
Duty to inform customer of their cooling off right
 How many days?

Goods left with consumer without requiring/arranging payment for it?

MARKETING –
CATALOGUE MARKETING
S33

Catalogue marketing = _____________________________________

________________________________________________________

Agreements concluded telephonically, postal order, fax/similar manner

Before entering into agreement as result of catalogue marketing,

supplier must disclose:
 (a)
 (b)
 (c)
 (d)
 (e)
 (f)
 Doesn’t apply to
 (a)
 (b)
MARKETING - TRADE COUPONS
&
S34
SIMILAR PROMOTIONS
Promotional offer = _______________________________________________
______________________________________________________________
Making a promotional offer with the intention of not fulfilling it/fulfilling it other than
offered is?
Document must contain certain basic info
 Such as?
 Duty to ensure the supply of the thing is sufficient to fulfills demands
 Whose duty?
 Not t h e s a m e a s promotional competition & loyalty program
 MARKETING – LOYALTY
PROGRAMS
S35
Loyalty program =
_________________________________________________
___________________________________________________
____________
Loyalty credit =
___________________________________________________
___________________________________________________
____________
Offering participation in a loyalty programme/credit
with intention of not providing it/providing it other
t h a n offered is?
Document must set out certain information
 Such as?

Availability of goods/services?
MARKETING – PROMOTIONAL
COMPETITIONS
S36
Promotional competition = ___________________________________________
________________________________________________________________
Prize = __________________________________________________________
Applies to which promotional competitions?
Can payment/consideration be required?
Supplier ______ inform consumer that they have won the competition if there was no
competition
Prize may not be awarded to?
Competition rules
MARKETING – ALTERNATIVE
WORK SCHEMES
S37
Prohibits ________________ from making a false representations in respect of
the ___________________________________________________
Included?

Adverts must contain a cautionary statement

Consumer may not be charged any fees
 Unless?
MARKETING – REFERRAL
SELLING
S38
Person is prohibited from promoting, offering, supplying, agreeing to
_________________________________________________________________
_________________________________________________________________
Franchise agreements?
MARKETING - AGREEMENTS WITH PERSONS
LACKING CAPACITY TO ACT
Agreements with persons lacking capacity to act (TB is
Incorrect)
S 39

MENTALLY UNFIT

UNEMANCIPATED
MINOR

S39 N/A
RIGHT TO FAIR & HONEST
DEALING Right to Fair &
Honest
Dealing

U nconsciona ble False

conduct represent a tions

F r a u dulent Pyramid
schemes
schemes

Right to assume
supplier may Auctions
sell goods

Changes, Overselling &

overbooking
deferrals,
waivers
IGHT TO FAIR & HONEST DEALING –
UNCONSCIONABLE CONDUCT
S40
Unconscionable conduct = _________________________________________
_____________________________________________________________
Supplier may not ________________________________________________
_____________________________________________________________
Can a supplier knowingly advantage of consumer who is unable to protect their
interests as result of physical/mental disability, illiteracy, ignorance, inability to
understand the language of an agreement or similar reason?
 HONEST DEALING – FALSE,
MISLEADING/DECEPTIVE REPRESENTATIONS
S41
Supplier _________ allowed false, misleading or deceptive statements in the
_____________ of goods or services or to ______________ consumers to believe them
Failure of supplier to correct consumers misapprehension?
HONEST DEALING – FRAUDULENT
SCHEMES & OFFERS
S42
Prohibits any person from ____________________________ in a fraudulent
currency scheme/financial transaction
 Unlawful activity/intention to defraud a person
HONEST DEALING – PYRAMID
& RELATED SCHEMES
S43
Prohibits _______________________________________________________
____________________________________________________________

Multiplicatio
n Scheme
•
Pyramid
Scheme
•
Chain Letter
Scheme
•
 HONEST DEALING - RIGHT TO ASSUME
SUPPLIER IS ENTITLED TO SELL THE GOODS
S44
Consumer has the right to assume:
 (a)
 (b)
 (c)

These are implied terms

NEST DEALING - AUCTIONS
S45
Auction includes?
When is a sale by auction complete?
Retracting a bid
Auction subject to a reserve price
 Notice
 If no notice was given?
HONEST DEALING - CHANGES, DEFERRALS,
WAIVERS & SUBSTITUTION OF GOODS
S46
If goods/services are supplied as a result of a change to an existing agreement, is it
regarded as a new agreement?
 Transaction was subject to a written agreement/sales record
 HONEST DEALING – OVER
SELLING & OVER BOOKING
S47
Supplier ___________ to accept any consideration/payment for goods/services if he has
no intention to supply them
Insufficient stock
 Circumstances beyond suppliers control
 EG:
 RIGHT TO FAIR, JUST &
REASONABLE TERMS &
CONDITIONS
Right to Fair, J u s t
& Reasonable
Terms &
Conditions

Unfair, Written consumer Prohibited

u n reasonable Powers of court
agreements transactions
terms
 REASONABLE TERMS- UNFAIR,
UNREASONABLE OR UNJUST TERMS
SELF STUDY
S48
Supplier _________ supply, offer to supply/enter into agreement goods/services at price/on
terms that are _____________________________________________
_______________________________________________________________
Supplier is not allowed to ___________________________________________
_____________________________________ in a manner that is unfair,
unjust/unreasonable
Can a supplier require a consumer to waive any rights, assume any obligations, waive
suppliers liability?
When will a transaction be unfair?
What factors does the court take into account?

30.2.4.7.2 - LEAVE OUT

REASONABLE TERMS - WRITTEN
CONSUMER
S50
AGREEMENTS
Categories of agreements that must be in writing
 Prescribed by Minister

If the agreement is in writing but isn’t signed?

Supplier ________ provide a copy of the agreement to the consumer for
________
 Access to an electronic copy?

If the agreement is not required to be in writing?

 REASONABLE TERMS - PROHIBITED
TRANSACTIONS, AGREEMENTS,
TERMS/CONDITIONS
S51
Terms which ________________________________________________
__________________________________________________________
Terms may not:
 (a)
 (b)
 (c)
 (d)

Can a supplier use an exemption/indemnity agreement to limit/exempt a supplier

from liability or loss?
Terms which contravene S51 are?
 REASONABLE TERMS –
POWERS OF THE COURT
S52
Courts have a broad power
Factors the court takes into consideration:
 (a)
 (b)
 (c)

Who may make an order in respect of the right to fair, just/reasonable terms &
conditions?
RIGHT TO FAIR VALUE, GOOD QUALITY &
SAFETY
Right to Fai r
Value, Good
Quality & Safety

Quality service Quality service

Safe, good Warrant y of

quality goods quality

Warrant y on
repaired goods Warnings

Recovery & safe Safety

disposal mon itoring

Liability for
damage
VALUE, QUALITY & SAFETY – RIGHT
TO DEMAND QUALITY SERVICE
S54
Consumer has the right to:
 (a)
 (b)
 (c)
 (d)
 (e)

If the supplier fails to comply?

VALUE, QUALITY & SAFETY – RIGHT
TO SAFE, GOOD QUALITY GOODS
S55
Goods must meet a specific standard
Consumer must receive goods that are:
 (a)
 (b)
 (c)
 (d)
 (e)

Factors that must be considered?

Does it matter if the defect is patent/latent?

Better goods available
When will the right not apply?
 VALUE, QUALITY & SAFETY –
IMPLIED WARRANTY OF QUALITY
S56
To which transactions will the implied warranty apply?
What does this implied warranty entail?

If goods fail to satisfy requirements, consumer may return the goods within
________________
 Penalty?
 At whose risk?
 Consumer may choose:
 (a)
 (b)
 This implied warranty is in addition to any other warranty given by law/parties
 VALUE, QUALITY & SAFETY –
WARRANTY ON REPAIRED GOODS
S57

Warranted for 3
months after
installation
•
Warranty would be
void •

Warranty •
VALUE, QUALITY & SAFETY –
S58
WARNINGS
Supplier of any activity/facility that is subject to any risk of an unusual nature
 Type of risk?

Consumers attention
Packaging of hazardous waste/unsafe goods
VALUE, QUALITY & SAFETY –
RECOVERY
S59 & SAFE DISPOSAL
Legislation prohibits the disposal of goods,
components, etc into a common waste
collection system

Any person who supplies such object, in the

ordinary course of business

Must accept ret urn of the object w/o

charge, irrespective of whether he supplied
it to the consumer
VALUE, QUALITY & SAFETY –
S61
LIABILITY
Strict no fault liability
 What does this mean?
 5 requirements of delict:

Who may be held liable for harm?

 Product failure, defect, hazard, inadequate instructions or warnings
 Negligence

What type of harm may be claimed?

30.2.5 Suppliers Liability – LEAVE OUT

 VALUE, QUALITY & SAFETY –
SAFETY MONITORING & RECALL
S60
NCC has the duty to?

Providing for systems to?

PROTECTION OF CONSUMER
RIGHTS
S100

NPA
(Prosecution)

Conduct NCC:
Failure to
prohibited by Compliance
comply
the CPA Notice

NCT (Fine)
PROTECTION OF CONSUMER
RIGHTS
NCC =
 Organ of state with ____________ jurisdiction
 Functions:

NCT =
 Adjudicates complaints iro?
 Impose penalties

Infringement of rights in CPA, approach:

 NCC, NCT, ADR agents, ombuds, equality courts, consumer courts, civil courts (option
of last resort)

30.2.7 Business Names - LEAVE OUT