From 01 April 2011 all the provisions of the Consumer Protection Act No. 68 of 2008 and the Regulations (“Act”) will apply. Some sections like the section regarding product liability have applied since 24 April 2010.

The Act applies to every transaction regarding the supply of goods and services in South Africa or the promotion (i.e. advertisement) of such goods and services.

WHAT HAS CHANGED?

In short consumers have more rights.

A consumer is a person (including juristic persons such as companies and close corporation) to whom goods and services are advertised or supplied. Furthermore a “consumer” include a user of such goods or the beneficiary of such services even if such user or beneficiary was not a party to the original transaction.

Consumers which do not benefit from the Act include juristic persons with an annual turnover or asset value exceeding R2 million and the State.

 THE CONSUMERS RIGHTS:

Consumers now have the right to:

• Privacy which includes the right to restrict unwanted direct marketing. Direct marketing means the contacting of a person directly, including via e-mail, with the intention of promoting or offering to supply goods or services or requesting a donation). If a consumer requests that you should not contact him in any way you must abide by his request.
• Choice which includes the right to: 
  • Choose or examine goods. A Consumer has the right to choose specific good as displayed in open stock and furthermore a consumers may not be liable for damage caused to goods unless their conduct amounted to gross negligence (conscious risk taking alternatively total failure to take care) or recklessness malicious behavior or criminal conduct.
  • A cooling off period for transactions as a result of direct marketing (see 3.1 above what constitutes direct marketing). Within 5 business days after the goods are delivered to the consumer a consumer may cancel the transaction and return the goods. The consumer must be notified of this right upon conclusion of such transaction.
  • Return goods under certain circumstances. Please see the Return Policy in this regard.
• Disclosure and information which includes the right to:
  • Information in plain and understandable language. In order to determine whether or not this requirement has been fulfilled you must determine whether an ordinary consumer of the class of persons for whom the information is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the information without undue effort.
  • The disclosure of the price of goods. Goods must contain the price of the goods including the unit price. The consumer is entitled to the lowest price displayed, unless there is an inadvertent and obvious error or the price was altered in someway by an unauthorized person.
  • Product labeling and trade descriptions that are not misleading.
• Fair and responsible marketing which includes the right to general marketing standards. Marketing must not be misleading, fraudulent or deceptive furthermore goods or services advertised at a specified price must be supplied at such price to such limits as advertised.
• Fair and honest dealings which includes the right to:
  • Not be exposed to false, misleading or deceptive representations. When dealing with a consumer you must not by words or conduct:
    • imply anything that is false, misleading or deceptive concerning any material fact;
    • use an exaggeration or create ambiguity concerning any material fact; or
    • fail to disclose any material fact or fail to correct any misapprehension on the part of the consumer representation concerning any material fact.
• Right to fair, just and reasonable terms and conditions which includes the right to:
  • Notice for certain terms and conditions. Any notice to consumers or provision of an agreement which –
    • limits in any way the risk or liability of any other than the consumer;
    • constitutes an assumption of risk or liability by the consumer;
    • imposes an obligation on the consumer to indemnify the any other person for any cause; or
    • is an acknowledgement of any fact by the consumer,

must be drawn to the attention in plain language and brought to the attention before the consumer enters the transaction. The consumer must also be given sufficient time to comprehend such terms.

• Right to fair value, good quality and safety which includes the right to –
  • Demand quality service. Notice must be given to consumers if there is an unavoidable delay.
  • Safe and good quality goods. Unless a consumer is specifically informed otherwise a consumer may assume that the goods:
    • are reasonably suitable for the purposes for which they are generally intended;
    • are of good quality, in good working order and free of any defects;
    • will be usable and durable for a reasonable period of time, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply; and
    • comply with any applicable standards set under the Standards Act No. 29 of 1993, or any other public regulation.

In addition to above, if a consumer has specifically informed you of the particular purpose for which the consumer wishes to acquire any goods, and the supplier –

• ordinarily offers to supply such goods; or
• acts in a manner consistent with being knowledgeable about the use of those goods,
• the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated.

Hold a supplier liable for damage caused by goods which are unsafe or which were the result of a defect or hazard present in such goods or as a result of insufficient warnings on such goods. A supplier may be held liable for the death or injury to a person, the damage to property and any economic loss that results.

14 April 2011